[1] The legal nature of the disposition of retirement based on the fact that the ground for ipso facto retirement is not the ground for automatic extinguishment of employment relationship (=a dismissal)

[2] In a case where an employer who operates a business of dispatching parking management and guard personnel agrees with the employee on the ground that the employment contract with the employee is terminated when the management service contract is terminated with the owner of the building where the employee works, the case holding that such grounds for termination cannot be deemed as grounds for automatic termination of the employment relationship

[1] Where an employer provides for the occurrence of a certain cause as a reason for ipso facto retirement or dismissal and the procedure is different from ordinary dismissal or dismissal, ipso facto retirement disposition is subject to restrictions under Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) unless the reason for ipso facto retirement appears to be the reason for automatic termination of labor relations, such as the death, retirement age, and expiration of the term of labor contract.

[2] In a case where the employer, who operates a business of dispatching parking management and guard personnel, agrees with the employee to be terminated at the time of termination of the management service contract with the owner of the building where the employee works, etc., the case holding that such termination is not a ground for automatic termination of the employment relationship

[1] Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) (see Article 23 of the current Labor Standards Act) / [2] Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) (see Article 23 of the current Labor Standards Act)

[1] Supreme Court Decision 98Du18848 delivered on September 3, 1999 (Gong1999Ha, 2111) Supreme Court Decision 2007Du2067 delivered on October 25, 2007 (Gong2007Ha, 1845)

Plaintiff (Attorney Kang Byung-hun, Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Hanun, Attorneys Kim Shin-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na9896 decided August 24, 2007

The part of the judgment below against the plaintiff is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

In a case where an employer stipulates the occurrence of a certain reason as the reason for his/her retirement or dismissal, and the procedure is ordinarily dismissed or disciplinary action, unless the reason for his/her retirement appears to be the reason for automatic termination of labor relations, such as the death or retirement age of a worker, the expiration of the term of a labor contract, etc., a disposition of ipso facto retirement under Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) shall be deemed as a dismissal subject to the restriction under Article 30 of the former Labor Standards Act (see Supreme Court Decisions 98Du18848, Sept. 3, 199; 2007Du2067, Oct. 25, 2007); and it is a company whose main business is to dispatch the parking management and security personnel to a necessary place between that employee and its employer, and thus, it cannot be deemed as a reason for termination of a labor contract.

Nevertheless, solely based on its stated reasoning, the lower court determined that “the management service contract between the Plaintiff and the Defendant is deemed terminated at the time of termination of the building owner and the Defendant’s management service contract” under the employment contract concluded between the Plaintiff and the Defendant as stipulated in the provisions on the termination of the employment contract term, and that the management service contract between the Plaintiff and the Defendant is terminated on November 30, 2005, the Plaintiff’s claim to nullify the termination of the employment contract between the Defendant and the Plaintiff on the ground that the management service contract between the building owner and the Defendant was terminated on November 30, 2005. In so doing, the lower court erred by misapprehending the legal doctrine on the grounds for automatic termination of employment relationship, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the plaintiff among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)