[1] The purport of Article 27 of the Labor Standards Act

[2] The validity of an agreement that allows the return of expenses of education or wages during the period of education when a person fails to perform his/her occupational period after entrusted education and training

[3] The validity of an agreement that allows the company to return expenses incurred by the company for the overseas service when the company fails to perform its mandatory employment period after dispatch abroad (negative)

[1] Article 27 of the Labor Standards Act / [2] Article 27 of the Labor Standards Act / [3] Article 27 of the Labor Standards Act

[1] [3] Supreme Court Decision 2003Da7388 delivered on October 23, 2003 / [2] Supreme Court Decision 95Da2494 delivered on December 6, 1996, Supreme Court Decision 24951 delivered on December 6, 1996 (Gong1997Sang, 177), Supreme Court Decision 95Da5222, 5239 delivered on December 20, 196 (Gong1997Sang, 347)

ASEAN semiconductor Co., Ltd. (Attorney Jin-jin, Counsel for the plaintiff-appellant)

Immigration Co., Ltd. (Law Firm LLC, Attorney Lee Young-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na55456 delivered on July 3, 2001

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Summary of the judgment below

According to the reasoning of the judgment of the court of first instance, the court below, based on the adopted evidence, rejected the payment of expenses under the formula of Article 16 of the Guidelines for Overseas Training where the defendant did not comply with this, based on the following facts: (a) from November 1, 1996 to November 30, 199, while serving for about 37 months in an overseas business of the plaintiff company; and (b) retired on February 16, 200; and (c) according to the Rules for Overseas Employees of the plaintiff company, the overseas business employee shall return to the plaintiff company's electronic computer team for about 199; (d) the amount of expenses paid by the plaintiff company for overseas travel expenses; (e) the amount of expenses paid by the plaintiff company for the purpose of returning the aforementioned overseas business premium to the temporary overseas business company or related company; (e) the amount of expenses paid by the plaintiff's overseas business operator for the purpose of returning the insurance premium to the plaintiff company's overseas business operator's overseas; (e) the plaintiff company's overseas business operator's additional expenses for the payment period.

2. The judgment of this Court

However, it is difficult to accept the judgment of the court below for the following reasons.

Article 27 of the Labor Standards Act provides that an employer shall not enter into a contract stipulating penalty or amount of compensation for non-performance of an employment contract. The purport of the provision is that if an employee fails to pay penalty or compensation for damages even if he/she did not receive compensation for non-performance of an employment contract, it cannot easily escape from the detention of the employment contract. Therefore, even if an employee entered into an unfavorable employment contract, it is prohibited from unfairly compelling the employee to continue to work under restrictions on the freedom of retirement, and it is intended to guarantee the employee’s freedom of choice at the time of entering into an employment contract and protect the termination of an unfavorable employment contract. In addition, if an employee fails to perform an obligatory employment period from the date of completing education and training with a certain amount of wages paid to the employee, it shall be required to repay all or part of the relevant education and training expenses paid by the employee, but if the employee works for the period of his/her compulsory employment, it shall be deemed that the employer is not obliged to return all or part of the education and training expenses paid to the employee for non-performance of an employment contract or for non-performance of 294.

According to the records, the plaintiff company ordered the defendant to work in an overseas business corporation by issuing a personnel order (No. 4-1 of the record No. 37). The defendant returned to the plaintiff company for about three years and one month in the U.S. company dispatched (the defendant seems not to have received any special training or education during the overseas work period). The plaintiff company can recognize that the defendant paid not less than KRW 200 million in additional travel expenses, moving expenses, house rental expenses, vehicle travel expenses, family travel expenses, medical premiums, and tax subsidies for the defendant and his accompanying family members in addition to ordinary wages and overseas work allowances during the overseas work period, and the defendant company paid not less than KRW 200 million in additional travel expenses, moving expenses, moving expenses, vehicle rental expenses, family travel expenses, medical premiums, and tax subsidies for the defendant company's related company in accordance with the employer's order. In light of the defendant's duty's contents of the dispatched company's work and the period of overseas work, it is reasonable to view that the defendant company's main substance of the overseas work of this case constitutes a change in terms of training or education.

Nevertheless, under the premise that each of the expenses of this case, which the court below claimed by the plaintiff, is the cost to be handled by the members who originally worked abroad at their own expense, the measures that the Foreign Member Management Regulations with respect to the return of the above expenses are an agreement on the standards for exemption from the obligation to return the expenses cannot be said to be erroneous in the misapprehension of facts against the rules of evidence or in the misapprehension of the legal principles as to the Labor Standards Act, and it is clear that such

Therefore, the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)