2017Gaz. 12765 Action relating to Labor

1. ○○○;

2. △△△△;

3. OO;

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5. The error.

6. Experimental;

[Judgment of the court below]

Attorney Cho Jae-chul, Counsel for the plaintiff-appellant

Defendant Jeju Special Self-Governing Province

The representative of the Do Governor shall do so.

Government Law Firm Corporation, Attorney Kim Jae-chul, Counsel for the plaintiff-appellant

September 13, 2018

October 25, 2018

1. We affirm that the Plaintiffs’ retirement age by June 30, 2019 is between the Plaintiffs and the Defendant.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiffs are the employees of the Defendant’s public office (environmentalized Institute), and are born during the period from January 1, 1959 to June 1959.

B. On December 10, 2013, the national non-permanent contract labor union to which the plaintiffs belong entered into a collective agreement with the defendant, and with respect to the retirement age, the following provisions are stipulated.

Article 17 (Retirement Age) (1) The retirement age of a member shall be 60 years of age, and the date of birth shall be the end of June for the period between one and six months, and the end of December for the period between seven and December: Provided, That the retirement age of a member who is subject to the cumulative retirement system by the previous individual bargaining shall be 58 years of age, and a new employment shall be made within the limit of two years from the date of retirement.

C. The above retirement age provision was maintained in the collective agreement in 2016 (hereinafter referred to as the “instant collective agreement”) under Article 17(1) (hereinafter referred to as the “main provision of this case”) and the proviso of the same provision under the main provision of this case (hereinafter referred to as the “proviso of this case”).

D. The Plaintiffs are members subject to the retirement benefit accumulated system.

E. On June 2017, the Defendant notified the Plaintiffs that they were retired from the retirement age as of June 30, 2017 pursuant to the instant proviso clause, and the Plaintiffs were newly employed to the Defendant as of July 1, 2017 and engaged in the same day as before the retirement age.

[Reasons for Recognition] Unsatisfy, Gap 1-4 evidence, Eul 1 evidence, the purport of the whole pleadings; 2. Determination as to the defense prior to the merits

A. The defendant's defense

Even if the proviso clause of this case is null and void, the plaintiffs can file a lawsuit seeking additional wages and allowances. Thus, the lawsuit of this case is unlawful as there is no benefit of confirmation contrary to the supplement of the lawsuit of confirmation.

B. Determination

1) Relevant legal principles

The benefit of confirmation in a lawsuit for confirmation is recognized in cases where there is a dispute between the parties as to the legal relationship that is the subject matter of confirmation, and thereby, it is recognized that obtaining a judgment of confirmation is the most effective and appropriate means when the legal status of the plaintiff is unstable and dangerous, and the lawsuit seeking implementation can be brought, despite the fact that filing a lawsuit for confirmation is not a final resolution of dispute, and there is no benefit of confirmation contrary to the supplementary nature of the lawsuit for confirmation (see, e.g., Supreme Court Decisions 2005Da41153, Jul. 10, 2008; 2009Da93299, Feb. 25, 2010). However, even if a lawsuit for performance based on a claim derived from the basic legal relationship is possible, a lawsuit for confirmation of the relevant basic legal relationship itself is allowed, so even if it is possible to bring a lawsuit for performance, a lawsuit for confirmation of the basic legal relationship itself is derived from the basic legal relationship itself (in cases where a lawsuit for confirmation is allowed from the basic legal relationship itself).

2) In the instant case:

In this case, there is a dispute over the retirement age time of the plaintiffs, which is the legal relationship that serves as the basis of the claim for additional wages and allowances, so obtaining confirmation of the retirement age time of the plaintiffs would be a final settlement method of a dispute related to this issue, and it is difficult to view that there is no benefit of confirmation contrary to the principle of supplement. The defendant's prior defense on the merits is without merit.

A. Relevant statutes

According to Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (hereinafter “the Elderly Employment Act”), an employer shall set the retirement age of workers at least 60 years of age (Paragraph 1), and if an employer sets the retirement age of workers at less than 60 years of age, the retirement age shall be deemed set at 60 years of age (Paragraph 2). Therefore, a labor contract or employment rules, which stipulates that the retirement age of workers shall be under 60 years of age, and a collective agreement is null and void to the extent that it violates the aforementioned provisions (see Supreme Court Decision 2016Da249236, Mar. 9, 2017). Meanwhile, the aforementioned provisions shall apply from January 1, 2017 to a local government, such as the Defendant, pursuant to the Addenda to the Elderly Employment Act.

B. In the instant case

1) According to the proviso of this case, the Plaintiffs, a member of the association, who is subject to the retirement accumulated reduction system, shall reach the retirement age of 58 years of age. The above proviso is null and void as it violates Article 19 of the Elderly Employment Act, which is a mandatory provision. In this case, the Plaintiffs’ retirement age between January 1, 1959 and June 30, 2019, which is the end of June of the year when they reach 60 years of age under this case’s provision, is deemed to have been set at 60 years of age under Article 19(2) of the Elderly Employment Act, and thus, the Plaintiffs’ retirement age between June 30, 2019, which is the end of June 30 of the year when they reach 60 years of age under this case’s provision (this proviso of this case’s provision of this case’s provision of this case’s collective agreement is not null and void because it is an agreement with the trade union to which the Plaintiffs belong, or ② if the proviso of this case’s provision of this case is null and void, it is without merit.

2) The Defendant asserts that the instant proviso clause provides that the Plaintiffs shall be additionally employed for two years after the retirement age limit of 58, and thus, the Defendant actually guaranteed the age limit of 60.

However, the retirement age is a system that terminates labor contract relations, regardless of the intention and ability of the workers to continue their labor, when they reach a certain age set forth in a collective agreement or labor contract. As long as the proviso of this case sets the premise that the labor contract relationship is terminated due to the age limit of 58, it is difficult to view that the provision of the proviso of this case sets the age limit of 60 even if it prescribes the additional employment period of 2 years thereafter. The Defendant’s assertion is without merit.

C. Conclusion

Since the retirement age of the plaintiffs is June 30, 2019, and the defendant is dissatisfied with this, the plaintiffs have a benefit of confirmation. Thus, the plaintiffs' claims are justified.

(Presiding Judge)

Manyman;

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