In a case where the rules of employment are invalid as a result of a change without the consent of the employee's collective intent, whether the rules of employment before and after the change should be applied (negative)

When an employer amends the working conditions stipulated in the rules of employment to a disadvantage to an employee without the consent of the employee, the effect of the revision is no longer effective in relation to the existing employee whose vested interests are infringed, and the validity of the previous rules of employment remains intact. However, in relation to the employee who accepted the working conditions under the amended rules of employment and acquired the employment relationship, the revised rules of employment should be applied as a matter of course, and there is no ground to view that the previous rules of employment should be applied by denying the effect of the revision to the employee after the revision without any ground to exclude the infringement of vested interests.

Articles 28(2) and 95 of the Labor Standards Act

Supreme Court en banc Decision 91Da45165 delivered on December 22, 1992 (Gong1993Sang, 546), Supreme Court Decision 92Da39778 delivered on January 15, 1993 (Gong1993Sang, 710), Supreme Court Decision 92Da5215 delivered on March 23, 1993 (Gong193Sang, 1277)

Plaintiff 1 and 25 others (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Korea Institute of Science and Technology (Attorney Go Young-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 94Na1809 delivered on May 17, 1994

Of the part of the lower judgment against the Defendant, the part against the Plaintiffs other than Plaintiffs 2, 3, and 7 is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeals against Plaintiffs 2, 3, and 7 are all dismissed. The costs of appeal against the dismissed part are assessed against the Defendant.

The defendant's attorney's grounds of appeal are examined.

1. As to the grounds of appeal against the plaintiffs other than plaintiffs 2, 3, and 7

A. According to the reasoning of the judgment below, Articles 3 and 5 of the above Act provide that retirement allowance shall be paid by applying the prescribed rate of payment according to the number of years of service. Article 4 (3) of the above Act provides that "monthly pay" means 30 days of average retirement allowance under Article 19 of the Labor Standards Act, and Article 10 of the above provision provides that the above provision shall not apply to cases where serious circumstances arise which make it impossible to continue the operation of the defendant corporation ( Subparagraph 2) and other circumstances that make it impossible to enforce the above provision (Article 10 of the above provision). Since the above provision on the payment of retirement allowance Article 10 of the above provision provides that the above provision on the payment of retirement allowance shall not apply to the above employees under Article 10 of the above provision on the payment of retirement allowance, the above provision on the payment of retirement allowance shall not apply to the employees under Article 10 of the above Act on the grounds that the above provision on the payment of retirement allowance shall not apply to 10% of the basic amount of retirement allowance under Article 4 and 5 of the Labor Standards Act.

B. In principle, an employer may prepare and revise the rules of employment according to his/her intent, since he/she has the authority to prepare and revise the rules of employment. However, if an amendment is unfavorable to an employee, consent is required by the collective decision-making method of the employee who was subject to the previous rules of employment or the rules of employment. Any amendment of the rules of employment which did not obtain such consent is not valid unless it is recognized as reasonable by social norms (see Supreme Court Decision 93Da14493, May 24, 1994). Meanwhile, in the case of an amendment to the terms of employment under the rules of employment unfavorable to an employee without the consent of the employee, if the employer did not obtain the consent of the employee, the effect of the amendment does not extend to the existing employee’s relationship with which the benefit derived from the amendment would be infringed. However, the revised rules of employment should naturally be applied to the relationship with the employee who had the employment relationship after the amendment, and there is no ground to deny the validity of the amendment to the employment after the amendment (see Supreme Court en banc Decision 2006Da5265, Dec. 1925, 19962.

However, as legally determined by the court below, if the defendant corporation implemented Article 4 (3) of the above provision on the basis of the reservation clause of Article 10 of the above provision on the payment of retirement allowances, it constitutes a modification of the above provision on the payment of retirement allowances, and thus the legal principles on the modification of the rules of employment as seen above are applied as seen above. In light of the fact that even if the reservation clause of Article 10 of the above provision on the ground that the above provision on the payment of retirement allowances is null and void, in principle, the right to prepare and revise the rules of employment is an employer, as a matter of principle, it is nothing different from that of the previous employees without the consent of the previous employees. Thus, the above provision on the payment of retirement allowances does not apply to the plaintiffs (other than plaintiffs 2, 3, and 7) who accepted the current working conditions after the enforcement of Article 4 (3) of the above provision on the payment of retirement allowances.

C. Nevertheless, the court below decided that Article 4 (3) of the retirement allowance rules should be applied to the above plaintiffs. Thus, the court below erred in the misapprehension of legal principles as to the modification of the rules of employment, and it is obvious that such illegality affected the conclusion of the judgment, and therefore, there is a ground to point this out.

2. As to the grounds of appeal against Plaintiffs 2, 3, and 7

In light of relevant evidence and records, it is recognized that the court below's calculation of the retirement allowance of Plaintiffs 2, 3, and 7 who were employed before the enforcement of the above retirement allowance payment provision is justifiable and there is no error of law as to the lawsuit in the judgment below.

3. Therefore, among the part against the defendant in the judgment of the court below, the part against the plaintiffs other than plaintiffs 2, 3, and 7 is reversed, and that part of the case is remanded to the court below. The defendant's appeal against plaintiffs 2, 3, and 7 is dismissed. The costs of appeal against the dismissed part are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Shin Sung-sung (Presiding Justice)