(영문) 전주지방법원 2019.7.18.선고 2018구합2466 판결

The Defendant’s disposition of recovering KRW 3,600,000 for extension of employment of elderly citizens against the Plaintiff on June 19, 2018 shall be revoked.

Reasons

1. Details of the disposition;

A. Article 51 of the Rules of Employment of the Plaintiff provides that “The retirement age of an employee shall be 64 years of age (Provided, That a technical position shall be 62 years of age) and shall be 64 years of age on the date of birth, and shall be 62 years of age.” However, a certain period of time may be extended upon approval of the representative director,

B. (1) On October 13, 2010, the Plaintiff entered into a labor contract including the following contents for the first time with the worker B (C).

1. The contract term 1) The contract term shall be from October 13, 2010 to October 12, 201, and the contract term shall be from October 13, 201 to the end of the contract term for the entrusted management.

B) B continued to be employed by the Plaintiff even after October 12, 201, which is the end of the period of work stipulated in the said employment contract, and continued to reach the retirement age stipulated in the Plaintiff’s employment rules by reaching the age of 64 years on February 4, 2015. The Plaintiff entered into a contract with B on February 5, 2015 to February 4, 2016, under which the term of the employment contract was 12 months from February 5, 2015 to February 4, 2016, and at the same time the term of the consignment management contract was terminated even before the said term expires.

2) A) On December 16, 2013, the Plaintiff entered into an employment contract with workers D (E) for the first time (hereinafter referred to as “the first employment contract of this case” in total, including each employment contract that the Plaintiff entered into with B and D for the first time).

1. The contract term 1) The contract term shall be from December 16, 2013 to December 15, 2014, and the contract term shall be from December 16, 2013 to the end of the contract term for the entrusted management.

B) D continued to be employed by the Plaintiff even after December 15, 2014, which is the end of the work period stipulated in the above employment contract. On November 14, 2015, the Plaintiff reached the retirement age stipulated in the Plaintiff’s employment rules. On November 15, 2015, the term of the employment contract with D is 12 months from November 15, 2015 to November 14, 2016, and the contract to terminate the employment contract at the same time even before the termination of the contract period (hereinafter collectively referred to as the “reemployment contract”). C. 1) The Plaintiff applied for a re-employment subsidy to the Defendant on February 22, 2018 (hereinafter referred to as the “employment subsidy”) under Article 25(1)3 of the Enforcement Decree of the Employment Insurance Act (hereinafter referred to as the “employment subsidy”) on the ground that the Plaintiff re-employmented the Defendant, B, and D for 64 years after the retirement age.

2) On March 8, 2018, the Defendant, upon the instant application, paid to the Plaintiff KRW 3.6 million in total, from February 5, 2015 to August 4, 2015, the instant subsidies and the instant subsidies from November 15, 2015 to May 4, 2016, regarding D.

D. On May 18, 2018, the Defendant re-examineed the instant application to the Plaintiff, and thereby, limited to the workers who entered into an employment contract on the premise that they will work up to the retirement age, such as the payment of the instant subsidy without a fixed period of time. Since B and D limited the period of work to one year at the time of the instant initial employment contract or the end of the period of the consignment management contract, they are employed as a fixed-term worker, and on the ground that they cannot be deemed an employee who entered into an employment contract without a fixed period of time, notified the Plaintiff that they would recover KRW 360,00

E. On June 19, 2018, the Defendant issued a disposition to recover the instant subsidy of KRW 3.6 million to the Plaintiff as unjust enrichment (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 3, Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff maintained the employment relationship between B and D for a period of one year after the date when the Plaintiff entered into the instant first employment contract with B and D and until D reaches the retirement age. Accordingly, each employment contract between the Plaintiff and B and D became non-fixed-term employment contract pursuant to the main sentence of Article 4(1) of the Act on the Protection, etc. of the Party’s Will or Fixed-term and Part-Time Workers (hereinafter “Period-Based Act”). Therefore, each employment contract between the Plaintiff, B and D satisfies the requirements under Article 23 of the Employment Insurance Act and Article 25(1)3 of the Enforcement Decree of the same Act, and thus, the instant disposition is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether B and D constitute a fixed-term worker

Article 2 subparagraph 1 of the Fixed-term Workers Act provides that "a fixed-term worker" means a worker who has entered into a labor contract with a fixed period of time. According to Article 4 (1) 4 and (2) of the Fixed-term Workers Act, Article 2 subparagraph 1 of the Act on Prohibition of Age Discrimination in Employment, Elderly Employment Promotion, and Article 2 (1) of the Enforcement Decree of the above Act, the aged aged 55 years or older may be employed as a fixed-term worker for more than two consecutive years. The aged aged 55 years or older shall not be regarded as a worker who entered into a labor contract with no fixed period of time, even if they are employed as a fixed-term worker for more than two years.

In light of the following circumstances, it is reasonable to view that B and D still were fixed-term workers after entering into the instant initial employment contract after considering the relevant statutes, the facts acknowledged as above, and the purport of the entire evidence presented earlier.

① The term of the instant initial employment contract was set as one year, and the term of the contract expires, as well as when the Plaintiff’s entrustment management contract concluded with the customer within one year, is terminated. Therefore, the instant initial employment contract constitutes a fixed-term employment contract with D and B as a fixed-term employee. B and D already entered into the instant initial employment contract with the Plaintiff as aged 5 years or older at the time of initial employment with the Plaintiff at the time of the initial employment. After the lapse of one year after the date of the initial employment period stipulated in the instant initial employment contract, they have worked as they were explicitly renewed or without concluding the instant re-employment contract before entering into the instant initial employment contract.

This means that the Plaintiff, B, and D have explicitly renewed the previous employment contract after the termination of the employment period stipulated in the initial employment contract in this case, and each employment contract which is implicitly renewed is identical to the previous employment contract, barring any special circumstance. Thus, the employment period of each employment contract, which is implicitly renewed between the Plaintiff, B, and D, should be deemed as the termination date of the original employment contract in this case or of the entrusted management contract in this case.

③ The aged aged 55 years or older is not regarded as a worker who entered into an employment contract without a fixed period of time, even if they are employed as a fixed-term worker for more than two years. Thus, insofar as the Plaintiff, B, and D did not explicitly change the instant initial employment contract into an employment contract without a fixed period of time, it is difficult to deem that the said employment period was changed to a non-fixed term of time solely on the ground that the instant initial employment

④ The Plaintiff asserted to the effect that the initial employment contract of this case was implicitly extended and the period of the contract was not fixed, but did not submit specific evidence to support it. The Plaintiff stated that the initial employment contract of this case was terminated in addition to setting the contract term as one year, and that “the termination of the entrustment management contract shall be the last day of the period of the entrustment management contract.” However, it is difficult to deem that the Plaintiff had an intention to guarantee the continuous employment of B and D regardless of the termination of the initial employment contract of the business partner with whom B and D worked, even if the initial employment contract of this case was implicitly renewed.

2) Article 23 of the Employment Insurance Act and Article 25(1)3 of the Enforcement Decree of the Employment Insurance Act provide that "in the case of re-employment of fixed-term workers, a person who has reached the retirement age is not retired or re-employed within three months after his retirement age is retired, as the requirements for the payment of the subsidy in this case."

① The instant subsidy, however, is intended to ensure that an employee who continuously employs a person who has set the retirement age at a place of business with a certain age or above without having set a retirement age or re-employed within a short period after retirement age continues to maintain employment relations even after the retirement age. It seems that the employee who has reached the retirement age does not simply intend to maintain employment relations with the employee who has reached the age above the retirement age without being subject to the application of the retirement age. ② Under Article 25-2 of the Enforcement Decree of the Employment Insurance Act, the subsidy for employment of the aged aged 60 years or older is separately stipulated in the purport of supporting the employment relationship regardless of whether the aged is a fixed-term employee, and ③ Article 25(1)3 of the Enforcement Decree of the Employment Insurance Act provides that “within 3 months after retirement or re-employment” is not subject to the retirement age under the language and text of the instant subsidy, or is premised on the premise that he is an employee who has already retired on the ground of the retirement age, and thus, it cannot be subject to the employment contract for the aforementioned two-year period.

Therefore, the conclusion of the re-employment contract with B and D, a fixed-term worker, did not meet the requirements for the payment of the subsidy of this case. Thus, the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.