2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

A. The primary purport of the claim

The Defendant confirms that the dismissal decision against the Plaintiff on February 27, 2015 is null and void. The Defendant shall pay to the Plaintiff the amount equivalent to KRW 4,500,000 per month from March 1, 2015 to the time the Plaintiff is reinstated.

B. Preliminary purport of claim

The defendant shall pay to the plaintiff 130,500,000 won with 15% interest per annum from the day following the day of service of a copy of the application for amendment of the claim of this case to the day of complete payment (the plaintiff added the preliminary claim at the trial).

2. Purport of appeal

The judgment of the first instance court shall be revoked. It shall seek a judgment such as the primary purport of the claim.

A. From January 1, 1995 to February 28, 2015, the Plaintiff served as a nurse at the Defendant Medical Center.

B. On August 16, 2012, while performing the duties of providing nursing by visiting home, there was an error in the situation due to traffic accidents on August 16, 2012, and on March 20, 2013, the Plaintiff was paid sick leave. After completing sick leave, the Plaintiff was reinstated on May 2013, and his/her health was worse while performing three-dimensional services from January 1, 2014, and one-month period was born on July 2014.

C. On November 2014, when the Plaintiff was unable to perform his/her duties, the Plaintiff decided to retire. On January 2015, the Plaintiff sent to Nonparty 1 and the retirement from office, and on February 2015, the Plaintiff sent an interview with Nonparty 2, who was on the retirement from office. The Plaintiff’s superior asked the Plaintiff to work until the end of February, 2015. The Plaintiff accepted the request and decided to work until the end of February 2015.

D. On February 13, 2015, the Plaintiff submitted to the Defendant an application for resignation, voluntary retirement, and voluntary retirement allowances, and the written resignation states, “The person himself/herself, who was on the basis of an industrial accident, shall be on the basis of the aftermath of February 28, 2015 and shall be on the basis of his/her health and aftermath of February 28, 2015” (Article 2-1 of the Evidence).

E. On February 27, 2015, the Defendant rendered a ruling of rejection and dismissal of the application for voluntary retirement as follows, and notified the Plaintiff thereof (hereinafter “instant dismissal decision”).

Article 45-2(4)(b) of the Regulations on the Personnel Management of Kimcheon Medical Center (No. 3 No. 4293, Dec. 21, 1999; Supreme Court Decision 99Da42933, Dec. 21, 1999; 3. (a) Pursuant to Article 45-2(4) of the Personnel Management Regulations, a person who wishes to make a voluntary retirement shall submit an application document two months prior to his/her retirement to the head of the general affairs office and submit an application document for the voluntary retirement on Feb. 13, 2015; (b) as a person who returned to the head of the local affairs office and directly visited the head of the local affairs office on Feb. 13, 2015; (c) as the above period of application for the voluntary retirement was expired; (d) return due to failure to comply with the said regulations, which shall be dealt with on Feb. 13, 2015; and (d) dismissed on February 28, 2015.

F. The Plaintiff served as the Defendant Medical Center by February 28, 2015, and received retirement allowances of KRW 104,440,980 from the Defendant on March 10, 2015 after being notified of the instant dismissal decision around March 5, 2015.

G. The relevant provisions of the Defendant’s personnel regulations are as follows.

(1) Where an employee who has served in a hospital for at least 20 years prior to the date of his/her retirement intends to voluntarily retire, the head of a kindergarten shall determine his/her voluntary retirement following the deliberation of the personnel committee. In such cases, an application for and decision on voluntary retirement shall be made in the first half of the year and the second half of the year, and the order of priority in examination shall be as follows: 1. A person who is in the last half of the year of his/her continuous service; 2. A person who is in the second half of the year of his/her continuous service; 3. A person who is in the second half of the year of his/her continuous service; 3. The head of a kindergarten may restrict the scope of the scope of the voluntary retirement if it is inevitable in the budget. (4) A person who wants to receive the voluntary retirement shall submit an application document under attached Table 5(1) and attached Table 6(2) before his/her retirement, and the head of the kindergarten shall determine whether the person is eligible to receive the voluntary retirement, and notify the result thereof to the applicant in attached Table 7(3).

Note 1) A. 5> A. 2) A.M. 6> A. H. 3) A.M. 7>

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 3, 5 through 7, Eul evidence 1, 2, 8, 13 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment as to the plaintiff's primary claim

A. The plaintiff's assertion

The Plaintiff worked at the Defendant Medical Center for a period of February 20, meeting the requirements for voluntary retirement under the personnel regulations of the Defendant. On August 16, 2012, the Plaintiff was determined as an industrial accident compensationer due to a traffic accident, and constitutes “persons receiving medical care due to occupational illness or injury,” and falls under the top priority of voluntary retirement.

On February 13, 2015, the Plaintiff submitted a resignation document only with the application form for the payment of honorary retirement allowances to the voluntary retirement with the intent to apply for the voluntary retirement, and it does not submit a resignation document with the intention of a member of the Council separately from the application form for the voluntary retirement.

In the process of accepting and examining the application, the defendant did not take any measures to confirm whether the plaintiff's genuine intent is a voluntary retirement or a voluntary dismissal from office, but did not return the application for voluntary retirement according to the defendant's convenience and notified the voluntary dismissal from office.

Therefore, the instant decision on dismissal is null and void, and the Defendant is obliged to pay to the Plaintiff an amount equivalent to KRW 4,500,000 per month from March 1, 2015 to the time the Plaintiff is reinstated.

B. Determination

먼저 원고는 명예퇴직이 되는 것을 전제로 사직서를 제출한 것인지, 피고는 원고가 제출한 사직서의 의미를 확인하는 조치를 할 의무가 있었는지에 관하여 보건대, 위 인정 사실 및 갑 제2, 3, 7, 9호증, 을 제1, 2, 4, 7, 8호증의 각 기재, 제1심 증인 소외 3, 소외 4의 각 일부 증언에 변론 전체의 취지를 종합하여 알 수 있는 다음의 각 사정, 즉 ① 원고는 2015. 2. 13. 피고에게 명예퇴직원 외에 사직서도 함께 제출하였는데, 사직서에는 ‘산재 후유증 및 건강상 이유로 2015. 2. 28.자로 사직하고자 한다’는 확정적인 사직의 의사표시가 명확하게 기재되어 있을 뿐이고, 명예퇴직 신청이 받아들여지는 경우 사직하고자 한다는 취지는 전혀 기재되어 있지 않은 점, ② 원고는 2015. 2. 초순경 피고의 인사규정집을 열람하였기 때문에 명예퇴직 신청 및 결정은 상·하반기로 나누어 실시하고, 예산상 부득이한 경우에는 명예퇴직 대상범위를 제한할 수 있음을 알 수 있었던 점, ③ 원고는 각종 면담을 통해 피고 의료원에서 명예퇴직을 받아준 적이 없고 사실상 명예퇴직 신청이 받아들여지기 어렵다는 것을 알고 있었던 것으로 보이는 점, ④ 원고는 피고에게 명예퇴직원 및 사직서를 제출하면서 명예퇴직만을 신청하는 것이라거나, 명예퇴직 신청이 받아들여지지 않으면 계속하여 병원에 근무하겠다는 의사를 표시한 적이 없는 점, ⑤ 원고는 건강이 나빠져 병원에 근무하기가 어려워지자 2014. 11.경 사직을 결심하였고, 2015. 1.경 상사에게 사직 의사를 밝혔으며, 상사의 요청에 따라 2015. 2. 말경까지 근무하기로 한 점, ⑥ 원고는 2015. 2. 중순경 피고 의료원의 진단 검사학과 소외 5에게 “사표를 냈습니다. 2월 말까지만 근무합니다.”라고 이야기하였고, 동료 직원들에게 사직 선물로 양말을 선물하기도 한 점, ⑦ 원고는 2015. 2. 21. 자신을 제외한 2015. 3. 부서별 근무(당직) 명령부가 작성되었음에도 이에 대하여 별다른 의견을 제시하지 않은 점, ⑧ 원고는 2015. 2. 27. 명예퇴직 신청이 반려되었음에도 사직서에 퇴직일로 기재한 2015. 2. 28.의 다음 날인 2015. 3. 1.부터 스스로 피고 의료원에 출근하지 않은 점, ⑨ 원고는 이 사건 면직결정을 통고받은 후 2015. 3. 10. 별다른 이의 없이 피고로부터 퇴직금을 수령하였고, 그 무렵 피고에게 복직을 요청한 적이 없는 점, ⑩ 앞서 본 피고의 인사규정 제45조의2(명예퇴직) 제1항에 의하면 병원에 20년 이상 근속한 임직원으로서 정년퇴직일 전 1년 이상의 기간 중 자진하여 퇴직하고자 할 경우 원장은 인사위원회의 심의를 거쳐 명예퇴직을 결정하고, 이 경우 심사 결정 최우선순위는 업무상의 질병, 부상으로 요양 중인 자로 규정하고 있으며, 같은 조 제3항에 의하면 원장은 예산상 부득이한 경우에는 명예퇴직 대상범위를 제한할 수 있다고 규정하고 있는바, 앞서 본 바와 같이 원고가 피고에게 명예퇴직원을 제출할 당시인 2015. 2.경까지 약 20년 2개월간 재직하였고, 업무 수행 중 교통사고로 부상을 입어 병가를 냈던 사실은 인정되나, 피고는 2010년부터 2015년까지 부채가 약 140억 원 내지 약 183억 원에 이르렀으므로(을 제10호증), 피고가 원고에게 명예퇴직금을 지급하지 못할 예산상 부득이한 사유가 있었다고 보이는 점, ⑪ 피고의 직원이었던 소외 6은 원고보다 먼저, 2013. 6. 10.경 피고에 대하여 명예퇴직원을 제출하였다가, 피고로부터 예산상의 사유로 명예퇴직원 수리가 불가하다는 취지의 명예퇴직원 불허통보를 받자, 2013. 10. 24. 대구지방법원 김천지원(2013가단11832) 에 명예퇴직수당 지급청구의 소를 제기하였으나, 위 법원은 피고의 명예퇴직 심의·결정이 합리적인 범위를 일탈하였음을 인정할 만한 증거가 없다는 이유로 소외 6의 청구를 기각하는 판결을 선고하였고, 이에 소외 6이 항소하였으나 항소심인 대구지방법원(2014나4260) 은 항소기각판결을 선고하였으며, 이에 소외 6이 상고하지 않아 그 판결이 확정된 적이 있는바(을 제9호증), 위 소외 6의 배우자인 소외 3은, 원고의 명예퇴직원 제출 시로부터 1년 전인 2014년경부터, 원고에게 명예퇴직 신청에 관한 상담을 여러 차례 해주었기 때문에(제1심 증인 소외 3의 증언 등 참조), 원고로서는, 예산상의 사유로 소외 6의 명예퇴직원 수리가 되지 않은 것과 동일하게, 예산상의 사유로 원고의 명예퇴직원 수리가 되지 않을 것을 알고 있었을 것으로 보이는 점 등에 비추어 보면, 원고가 2015. 2. 13. 피고에게 사직서, 명예퇴직원, 명예퇴직수당지급신청서를 제출한 것을 명예퇴직 신청이 받아들여지지 않으면 계속하여 근무를 하겠다는 조건부 사직의 의사표시로 보기는 어렵고, 원고가 피고에게 사직서를 통해 확정적으로 사직의 의사표시를 하면서 명예퇴직도 함께 신청한 것이라고 봄이 타당하며, 원고가 여러 경로를 통해 이미 사직의 의사를 밝힌 후 피고에게 확정적인 사직의 의사표시가 기재된 사직서를 제출한 이상, 원고의 진정한 의사가 조건부 명예퇴직인지, 의원면직인지를 다시 확인하여 서류 보완 등을 하여야 할 사회통념상 의무가 피고에게 있다고 할 수 없다. 더 나아가 원고의 사직서 제출에 따라 피고가 한 이 사건 면직결정이 합리적인 범위를 일탈하였음을 인정할 만한 증거도 없다.

Therefore, the plaintiff's claim for nullification of the dismissal decision of this case is without merit, and the claim for payment of money equivalent to the benefits premised on this claim is without merit.

3. Judgment on the plaintiff's conjunctive claim

A. The plaintiff's assertion

1) In order to provide the Defendant with the honorary retirement, the Plaintiff submitted an application for the payment of the honorary retirement allowances and the honorary retirement allowances to the Defendant, and submitted a resignation with the Defendant’s medical staff to be retired. As such, the Plaintiff’s declaration of intention to resign under the above written resignation constitutes an error in the important part of the legal act, and thus, the declaration of intention to resign against the Defendant is revoked.

2) Although the Defendant was well aware of the fact that the Plaintiff’s voluntary retirement source was not submitted two months prior to his retirement under the personnel regulations, the Defendant concealed that the Plaintiff will be returned to the Plaintiff, accepted the written resignation submitted by the Plaintiff, and made the instant decision of dismissal, and notified the Plaintiff that the Plaintiff would return the voluntary retirement source. If the Plaintiff was notified by the Defendant that the voluntary retirement source would be returned, the Plaintiff withdrawn the intention of resignation by the written resignation. Thus, the Plaintiff expressed his intention of resignation due to the Defendant’s deception, and thus, the declaration of intention of resignation against the Defendant is revoked.

3) According to the Defendant’s personnel regulations, a person who wishes to make a voluntary retirement shall submit an application document two months prior to his/her retirement. While the Plaintiff’s filing date is indicated in the voluntary retirement center submitted on February 13, 2013, the Plaintiff’s filing date is not indicated, the Plaintiff’s filing date of the voluntary retirement under the Defendant’s personnel regulations shall be deemed to have been applied for the voluntary retirement on April 14, 2015, when two months have elapsed since February 13, 2015, the filing date of the voluntary retirement center was submitted in accordance with the Defendant’s personnel regulations, and the Plaintiff submitted the application document two months prior to his/her retirement, and decided to dismiss the Plaintiff who is the Defendant’s qualified person to make a decision to dismiss the Plaintiff, the Defendant is obligated to pay the Plaintiff KRW 130,500,000, and delay damages therefrom.

B. Determination

1) We examine the Plaintiff’s first argument.

A declaration of intent may be cancelled only when there is an error in the important part of the contents (Article 109 of the Civil Act). If a mistake in a simple motive, not a mistake in the important part of the contents of a juristic act, is an omission (see, e.g., Supreme Court Decision 2000Da12259, May 12, 2000). In order to cancel a juristic act on the ground that a mistake in the motive constitutes an error in the contents of a juristic act, it should be recognized that the motive is the content of the said declaration of intent and is the content of the said declaration of intent in the interpretation of the said declaration of intent (see, e.g., Supreme Court Decision 2009Da42635, Nov. 12, 200

In light of the above legal principles, it is recognized that the Plaintiff submitted a resignation and the voluntary retirement certificate to the Defendant on February 13, 2015. However, the above recognition alone is insufficient to recognize that the Plaintiff submitted a resignation certificate by misunderstanding that the Plaintiff should resign from the Defendant when the Plaintiff voluntarily retires, and there is no other evidence to acknowledge it. Even if the Plaintiff’s assertion was made, such misunderstanding is merely an error in the motive formed for the internal deliberation. However, there is no evidence to support that the Plaintiff’s motive was the content of the pertinent declaration of intent to the Defendant, and it is a juristic act as a matter of interpretation of the intent. Rather, it is difficult to find that the Plaintiff’s motive was the content of the said declaration of intent and, rather, it is difficult to say that the Plaintiff’s resignation (No. 2-1 of the evidence No. 1) merely stated that “the Plaintiff’s resignation is to be made on February 28, 2015, regardless of whether it would have been accepted or not, the Plaintiff did not appear to have known that it was the Plaintiff’s voluntary retirement.

2) On February 13, 2015, as seen earlier, the Plaintiff submitted a resignation and voluntary retirement report to the Defendant on February 13, 2015, and on February 27, 2015, the Defendant rejected the application form for voluntary retirement on the ground that the application form for voluntary retirement was not submitted two months prior to the retirement. Although the fact that the resignation was accepted is recognized, there is no evidence to acknowledge it as to whether the Defendant could not withdraw his intention of retirement by deception that the Defendant would return the Plaintiff to the Plaintiff. Rather, the facts of the recognition form as mentioned above can be comprehensively considered in the evidence No. 2, namely, the Plaintiff intended to retire promptly on the grounds of health, but it is difficult to view that the Plaintiff could not be dismissed from the Plaintiff’s office after the Plaintiff’s request due to lack of human resources, and the Plaintiff could not be deemed to have notified the Defendant of his/her intention to resign from the Plaintiff’s retirement allowance without any specific reason, in light of the Plaintiff’s expression of intention that he/she could not be dismissed from the Plaintiff’s retirement.

3) As seen earlier, as to the third argument of the Plaintiff, Article 45-2(4) of the Defendant’s personnel management regulations provides that a person who wishes to make a voluntary retirement should submit an application for voluntary retirement two months prior to his/her retirement. It is acknowledged that the Plaintiff did not state the date of voluntary retirement in the voluntary retirement center, but further, there is no evidence to acknowledge it as to whether the Plaintiff’s application for voluntary retirement on April 14, 2015, which was from February 13, 2015, the date when the Plaintiff submitted the voluntary retirement center in accordance with the Defendant’s personnel management regulations, should be deemed to have been filed on April 14, 2015.

Rather, the following circumstances revealed by the facts of recognition as seen earlier, namely, the Plaintiff’s declaration of intention to resign from office only until February 28, 2015 (Evidence A2-1), and the Plaintiff’s actual employment at Defendant Medical Center only until February 28, 2015, and around March 5, 2015, “the Plaintiff was dismissed from office as of February 28, 2015,” and the Plaintiff received retirement benefits from the Defendant on March 10, 2015 without any objection. In light of the following circumstances, the Plaintiff’s refusal to resign from office until February 28, 2015, and the Plaintiff’s refusal to resign from office as of February 28, 2015, based on the instant dismissal order that was dismissed as of February 28, 2015, it cannot be deemed that the Plaintiff’s retirement was submitted only before the date of retirement from office as of February 28, 2015.

Therefore, this part of the Plaintiff’s assertion on the premise that the Plaintiff was submitted two months prior to the date of retirement according to the Defendant’s personnel regulations is without merit. Moreover, according to Article 45-2 of the Defendant’s personnel regulations, when the Defendant voluntarily retires, the Defendant’s president determines the voluntary retirement following the deliberation of the personnel committee. Unless such a decision is made, it cannot be deemed that the Defendant merely accepted the written resignation and decided to dismiss the Plaintiff. Accordingly, this part of the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, the plaintiff's primary and conjunctive claims in this case shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance which dismissed the plaintiff's primary claims is just in its conclusion, and thus, the plaintiff's appeal is dismissed and the conjunctive claims are dismissed in the court of first instance. It is so decided as per Disposition.

Judges Sung-su (Presiding Judge)

1) An application for the payment of honorary retirement allowances

Note 2) Honorary (art.) Retirement Board

3) A written review of the requirement of an honorary (e.g., retirement);