2010Na103071 Nullification, etc. of dismissal

1. Do Governors;

2. Experimental;

3. OO;

4.

Attorney OO or OO by the plaintiffs

Korean Broadcasting System

Seoul Yeongdeungpo-gu Seoul Yeongdeungpo-do 18

Representative ○○○○

Law Firm OOO

[Defendant-Appellant]

Seoul Central District Court Decision 2009Kahap129193 Decided September 28, 2010

September 30, 2011

January 27, 2012

1. Of the judgment of the first instance court, the part against the plaintiffs falling under the following part of the rejection of renewal and the part of the order to pay money shall be revoked.

2. A. On September 30, 2009, the Defendant confirmed that each rejection of renewal made to Plaintiff △△△△△, ○○, and Plaintiff △△△△ on September 19, 2009 is null and void.

B. The Defendant: (1) from October 1, 2009 to the date of returning the Plaintiff from October 1, 2009 to the date of returning the same Plaintiff; (2) from October 1, 2009 to October 1, 2009 to the date of returning the Plaintiff, KRW 2,773,69 per month, and (3) from September 20, 2009 to September 374, 320; and (4) from October 1, 2009 to the date of returning the Plaintiff to the Plaintiff △△ Group; and (2) KRW 1,544,949 per month, from October 1, 2009 to the date of returning the Plaintiff to the same Plaintiff.

(D) each payment.

3. The plaintiffs' remaining appeals are dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

5. The portion of the money under paragraph (2) above may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall be revoked on September 30, 2009 to the Dou Dou, 000, ○○, ○○○:

On September 19, 2009, it is confirmed that each rejection of renewal made to the Plaintiff YU on September 19, 2009 is invalid. The Defendant’s each of the above pits

From the date of new rejection to the date of returning the plaintiffs to the date of returning them, 2,805,929 won, and the plaintiff

(1) On the basis of the lower judgment, the lower court determined that the lower court did not err by misapprehending the legal principles as to the lower judgment, thereby adversely affecting the conclusion of the judgment, as otherwise alleged in the ground of appeal.

1,544,949 won shall be paid respectively.

1. Basic facts

A. The Defendant is a public corporation established pursuant to the Broadcasting Act for the purpose of establishing a fair and sound broadcasting culture and efficiently conducting domestic and foreign broadcasts. The Plaintiffs’ annual salary shall be determined by setting the annual salary for one year from the date of entry into the following table to the Defendant as the basic annual salary for 12/13 of the annual salary, and the amount shall be paid on the 21st of each month following the 12th of the following month. The remainder of the annual salary shall be paid on the 1/13 of the annual salary, based on the evaluation standard and performance rate (0% to 200%) set by the Defendant as performance-based bonus, and each employment contract was concluded in the form of annual salary system to be paid on the expiration date of the contract period. At each time of the termination of the employment contract, each of the parties continued to renew the employment contract for a fixed period of one year each (hereinafter referred to as “instant employment contract”). The Defendant received a notice of termination of the employment contract from the Defendant on the grounds of the expiration date of the last employment contract.

B. Before the conclusion of the instant employment contract, Plaintiff B/L worked for the Defendant from September 2003 to September 2004, and from August 1999 to September 2000 as the temporary agency worker. At the time of the termination of the instant employment contract, Plaintiff B/L, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○,

The management of editing and data was in charge.

[Ground of recognition] Facts without dispute; Eul's statements 3, 4, 8, and 9 of evidence Nos. 1 and 2; and the purport of the whole pleadings; 2. Claims and determination

A. The instant employment contract concluded between the Plaintiffs and the Defendant is merely a form with a fixed period and without a fixed period. Thus, the instant refusal to renew the contract against the Plaintiffs constitutes a substantial dismissal. Furthermore, the instant refusal to renew the contract is null and void as it is unreasonable.

2) Even if the instant employment contract is not a non-fixed-term employment contract, the instant refusal was made against the Plaintiffs, who have a legitimate expectation for continued employment, without any reasonable ground, and thus, is null and void.

3) Accordingly, the Plaintiffs seek confirmation of invalidity of the refusal of renewal of the instant case, and as long as the refusal of renewal of the instant case becomes null and void, the Plaintiffs seek payment of wages, such as the purport of the claim from the date of refusal of renewal to the date of reinstatement.

B. Whether the contract of this case is a non-fixed term employment contract

1) Criteria for judgment

Even in a case where an employee and an employer prepare a written labor contract fixing a period of time when concluding a labor contract, if it is deemed that a fixed period of time is merely a form of employment contract by comprehensively taking into account the content of the written contract, the motive and circumstance leading up to the execution of the labor contract, the purpose and genuine intent of the parties concerned, practices regarding the conclusion of the same kind of labor contract, the rules on the protection of workers, etc., the content of the written contract shall be deemed to have been concluded without a fixed period of time (see, e.g., Supreme Court Decisions 98Du625, May 29, 1998; 2005Du5673, Feb. 24, 2006). However, if the above circumstances are not acknowledged, the content of the written contract between the employee and the employer shall be deemed to have been concluded according to a fixed period of time (see, e.g., Supreme Court Decision 2005Du2247, Jul. 12, 2007).

Article 1 (Purpose) The purpose of this Agreement is to provide for the content, working conditions, treatment, etc. of the employment contract with the plaintiffs employed as annual salary contract workers by the defendant.

Article 5 (Application of Provisions and Status) Except as otherwise provided for in this Agreement, the Plaintiffs are not subject to all the provisions applicable to the Defendant’s employees, etc., and their status shall be a simple annual salary contractor.

Article 9 (Use of Annual Leave and Compensation) (1) Annual leave is made by the Plaintiffs during the term of the contract.

All of them shall be used, and the plaintiffs shall submit the implementation plan for leave to the defendant and conduct leave with the approval of the defendant: Provided, That the defendant may consider the form of his/her duties, adjust the date of leave, or set a specific date and allow the leave to be conducted.

(2) Where leave referred to in paragraph (1) is not used, leave shall be extinguished: Provided, That where the defendant requests or causes a fault, a separate compensation allowance shall be paid as prescribed by the Labor Standards Act.

Article 11 (Retirement Allowance) (1) The defendant shall pay to the plaintiffs an amount equivalent to 1/12 of the annual salary (excluding piece rates, etc.) paid to the plaintiffs for one year of service period as retirement allowance.

(2) Retirement allowances shall be settled by receiving an application from the plaintiffs on a yearly basis, and the defendant shall pay it within 14 days after receiving an application for retirement allowances from the plaintiffs.

Article 13 (Termination of Contracts) (1) When the defendant deems that the plaintiffs fall under any of the following subparagraphs, he/she may terminate this contract:

1. Where the plaintiffs violated their obligations under this Agreement;

2. Where the plaintiffs neglected their service or whose service performance is poor;

4. Where the plaintiffs have failed to perform their duties for at least seven consecutive days, refused, or anticipated to make it impossible to perform their duties;

7. Where his duties are extinguished due to the circumstances of the defendant, or a necessity for employment is no longer available for other reasons.

2. If the contract term expires, this contract shall be terminated naturally without additional notice.

B) The Defendant’s standards for operating annual salary contract workers are as follows.

2. Employment: He/she shall establish reasonable selection standards under the responsibility of the head of the headquarters (the head of the Center) and shall, in principle, select them through open competition;

3. Conclusion of a contract: Conclusion of a contract with the head of the headquarters (head of the Center);

6. Contract term and re-contract: The contract term shall be one year after the first contract term expires, and the decision of re-contract shall be made at the expiration of the contract term;

(Clerks) Duties: Provided, That when the head of the headquarters who is in office as of the date of conclusion of the contract is changed, the contract shall be terminated; 10. Evaluation of work performance;

○ Assessment items and assessment elements

-Evaluation Items: Business Execution Capability and Performance Evaluation / Business Performance Evaluation

- Assessment elements

· Business performance capability and performance evaluation: Determination ability, creativity, expertise, work performance, degree of improvement of duties, appropriateness (six elements);

- Evaluation of the attitude of performance of functions: Liability sense, positiveness, cooperativeness, preparation, self-development (five elements);

○ Evaluation Dok and Assignment Points for Evaluation Elements

- Evaluation scale map: S, A, B, C, and D (5 stages)

-Granting points: S (10 points), A (9 points), B (8 points), C (7 points), and D (6 points). - In the event that at least four outstanding (10 points) points out of the total evaluation factors or “unsatisfy (6 points)” is reduced, objective reasons are described.

○ Time and Purposes of the evaluation

- The first half of the year: As of June 1 each year and as of December 1 each year;

- Use them in determining performance rates, whether to re-contracts, and annual salary amounts in accordance with the standards of reflection set out in “the annual salary contract assessment system”.

○ An evaluator and evaluation methods

- An evaluator: the team leader (100 points);

-Evaluation Method: Online Evaluation in the personnel information system;

○ Method of Calculating the overall point

- In accordance with the criteria for the assessment of comprehensive points set forth in “the annual salary contract contract assessment system”

Article 45(1)4 subparag. 1 of the Broadcasting Act) and Article 45(2) of the Act provide that the matters concerning the Defendant’s employees fall under the items of the articles of incorporation (Article 45(1)4 subparag. 1 of the Broadcasting Act) and the Korea Communications Commission to which the President belongs for the amendment of the articles of incorporation (Article 45(2) of the same Act). In addition, the Defendant is subject to the budget allocation regulation by the Ministry of Strategy and Finance, and the Defendant was subject to the budget allocation regulation by the Ministry of Strategy

[Ground of recognition] Determination of facts without dispute, Eul evidence Nos. 1 and 2-3, 4, 8, 9, Eul evidence Nos. 3 and 5, and the purport of the whole pleadings

As seen earlier, even if the plaintiffs continued to work for the defendant while renewal of their employment contract for a period of nine years long, and even if the plaintiffs' duties are recognized as ordinarily and continuously necessary for the operation of the defendant, considering the following circumstances revealed by the above recognition, considering the fact that the period under the employment contract in this case is merely a form and cannot be deemed as a non-fixed-term employment contract regardless of the terms and conditions of the contract. Therefore, this part of the plaintiffs' assertion on the premise that the employment contract in this case is a non-fixed-term employment contract is without merit without having to further examine it.

A) Matters concerning the Defendant’s employees should be approved by the Korea Communications Commission for the modification of the entries in the articles of incorporation. The Defendant is subject to strict management and control by the government, etc. regarding the modification of the employees, such as the increase in the number of employees subject to the regulation on the allocation of budget from the Ministry of Strategy and Finance. The Plaintiffs are not subject to all the provisions applicable to the Defendant’s employees, etc. except as otherwise provided in the above annual salary contract. Therefore, the Plaintiffs are likely to have

B) The Defendant is deemed to have employed the Plaintiffs as contract human resources on a one-year basis, and each annual salary contract was formulated and renewed with the Plaintiffs each time they concluded and renewed the instant employment contract. Each annual salary contract explicitly stated the period in each annual salary contract, and each annual salary contract provides that the employment relationship is terminated without any separate advance notice in cases where the contract period expires.

C) The above annual salary contract does not stipulate any provision or procedure concerning the re-contract, but provides that the Defendant’s annual salary contract management guidelines shall use the evaluation of work performance and the determination of re-contract. However, this is merely a reason for recognizing a legitimate expectation right to renew the labor contract, as seen below, in determining whether to conclude a re-contract based on the premise of a one-year period fixed. However, it is difficult to regard the Defendant’s annual salary contract as the content of guaranteeing the renewal of the contract as follows.

D) The Defendant, including the Plaintiffs, shall allow the annual salary contract workers to use all annual leave during the contract period, but the unused leave ceases to exist; the Plaintiffs’ failure to use violates their duties under the annual salary contract; the Plaintiffs’ neglect to work or poor work performance; and the need for employment ceases to exist due to the Defendant’s circumstances; etc.

The defendant provided that the contract can be terminated by the defendant, and the retirement allowance was settled and paid every time the contract expires.

C. Whether the rejection of renewal of this case is justifiable

1) Relevant legal principles

In principle, in cases of an employee who entered into a labor contract with a fixed period of time, the status as an employee shall be naturally terminated upon the expiration of the contract and, if the contract is not renewed, the employee shall automatically retire even without the expression of his/her intention of refusal to renew the contract. However, even if the contract expires in a labor contract, employment rules, collective agreement, etc. provides that the contract shall be renewed upon the fulfillment of certain requirements, regardless of the expiration of the contract, or taking into account various circumstances surrounding the labor relationship, such as the motive and circumstances in which the contract is concluded without such provision, the establishment of requirements or procedures for renewal, such as the standards for renewal of the contract, the actual conditions thereof, and the contents of the work performed by the employee, if the contract is deemed to have a fiduciary relationship that the contract is renewed if the certain requirements between the parties to the labor contract are met, and thus, the employer's refusal to renew the contract unfairly in violation of this provision is the same as the case where the previous contract is renewed (see, e.g., Supreme Court Decision 2007Du1729, Apr. 14, 2011).

2) As seen in the factual basis acknowledged prior to the legitimate right to expect the renewal of the instant employment contract, the instant employment contract is set at one year, but the Plaintiffs continued to renew their employment contract for more than nine years. The Plaintiffs’ duties assigned to the Plaintiffs are regular and continuous duties necessary for the Defendant’s operation. In light of the Defendant’s annual salary contract management guidelines, the issue of renewal of the contract shall be determined upon the expiration of the contract term. However, in a case where the two consecutive years’ comprehensive work points are less than 70 points based on the comprehensive work points according to the evaluation of work performance, such as the evaluation items and elements, assessment criteria and granting points, evaluation criteria and granting points, evaluation period, evaluation period, purpose of use, evaluators, and evaluation methods, etc., are relatively detailed, and the contract is not renewed in certain cases. However, in other cases where the comprehensive work points are more than a certain one, the Plaintiffs have renewed their employment contract for several years as above, and accordingly, the requirements for renewal of the employment contract shall be met when the Plaintiffs and the Defendant meet the criteria for renewal of the employment contract.

As trust relationship has been formed, the plaintiffs are deemed to have a legitimate expectation that the contract of this case will be renewed.

B) The following circumstances may be acknowledged in full view of the evidence mentioned above (1) as well as the statements mentioned in Eul Nos. 12 through 56 (including the number number; hereinafter the same shall apply) as to whether the rejection of the renewal of the instant case is justifiable, and the purport of the entire pleadings.

(A) Even though a corporation established under the Broadcasting Act collects and operates a receiving fee which is a special charge from citizens under Article 64 of the Broadcasting Act as a national key broadcasting company, since the receiving fee was set at KRW 2,500 in 1981 until now, advertising revenues such as cable TV and Internet sales have decreased since 2003, 70 billion per year for "digitalization of broadcasting facilities from 2007 to 2012" under national policies. The Defendant's net income in 2007 and 2008 has increased every year due to the increase in the amount of expenditure for 3.4 billion won for 2.5 billion won for 209 billion won for 206 billion and 3.4 billion won for 205 billion for 209 billion won for 206 billion won for 209 billion won for 2009 and 204 billion for 200 billion for 209 billion won for 209.

(B) The Board of Audit and Inspection did not make efforts to prepare and implement a "plan for long-term human resources supply and demand" with 15% reduction of human resources from around December 2005 to 30% of the sales amount by 2010 as a result of the request for disposition of the specific task performed by the Defendant on August 19, 2008 regarding the management status, and it pointed out that the total number of personnel including the extra-regular human resources has increased every year through the increase of extra-regular human resources such as annual salary contract workers. (c) Accordingly, the Defendant and the Defendant trade union agreed to pay wages in order to overcome the business crisis on December 19, 2008 and fulfill the obligations of public broadcasting, and to convert the current short-term retirement workforce into a retirement allowance system in conformity with the Labor Standards Act, and to reduce 15% of human resources by 2013. Next, the Defendant's management reform group has made efforts to promote the employment efficiency of regular employees and to improve its management performance as part of its business rationalization.

(D) On July 209, the Defendant, at the 805th management conference, established the Plaintiffs’ business rationalization by the 1st 5th 7th 200 workers, etc. (KBS media), or decided to entrust only 4 subsidiaries to the 2nd 5th 2nd 7th 5th 2nd 7th 5th 2nd 6th 7th 5th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 1st 1st 5th 2nd 1st 5th 1st 206th 2nd 1st 2nd 5th 2nd 1st 2nd 5th 2nd 5th 2nd 3rd 2nd 1st 2nd 2nd 5th 2nd 3rd 2nd 2nd 200 st 2nd 3rd 2nd 3rd 2nd 3rd 2nd 20th 2nd 3rd 3rd 2nd 2nd 3

(A) On May 2004 and August 2008, the Defendant was pointed out not only as a result of the audit of the Defendant’s operational status by the Board of Audit and Inspection, but also as a result of the inspection in 2009, that the Defendant’s human resources structure of the Defendant’s human resources is less than the working personnel and the higher ratio of the two classes or higher is 6% on December 403, 2003, 406, 42.9% on December 42, 2006, 48. 2% on July 48, 2008, 50, and 8% on July 509, 2009. In particular, the Defendant was pointed out that the higher ratio of the two classes or higher is excessive, and that the higher ratio of the two classes or higher is causing management burden by increasing the labor expense burden. In addition, the Defendant was pointed out on December 2, 2005

A long-term plan for the supply and demand of labor force, which would reduce human resources by 15% until 2010 to lower the ratio of personnel expenses to sales by 30%, was not implemented, but was pointed out again by the Board of Audit and Inspection on August 2008, and agreed on December 19, 2008 to reduce human resources by 15% until 2013 again, and only the special pre-sale retirement and desired retirement was implemented on November 18, 2010 only for 12 full-time employees who need to be higher from the date of refusal to renew the contract in this case.

(B) The Defendant’s 209 business reporting 209 KBS. From 200 to 200. The Defendant’s 2nd 7th 2nd 2nd 2nd 2nd 3rd 2nd 2nd 2nd 3rd 2nd 3rd 2nd 3rd 2009 to 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2009 to 3rd 2nd 3rd 3rd 2nd 3rd 3rd 2nd 3rd 2nd 4th 2009 to 4rd 2nd 2nd 3rd 3rd 2nd 3rd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd .

(D) The Defendant anticipated the increase in the cost of KRW 1,80,000 (care cost + KRW 560,000 + KRW 1297,000,000) in the early stage of the business transfer to the above 805 business year’s agenda data, without converting the annual salary contract into a inorganic contract position, or taking measures to transfer the business to a inorganic contract position, and in the long term, approximately KRW 6.6 billion in total cost ( KRW 19.73 billion in total cost when converting the indefinite contract position of annual salary - KRW 13.14,00,00 in total cost when transferring the above business to a inorganic contract position - KRW 8,000 in total cost when calculating the annual salary or the amount of the annual salary to be reduced to KRW 1,80,000 in total cost when changing the contract position of the above 800,000,000 won in general service, which is the average annual salary of the previous 7,000,08.

The expected effect of reducing cost is not persuasive, and it seems that the actual cost will increase.

(E) Although the Defendant, even if he was taking measures so that he could conduct re-employment as regular employees of the company that transferred the business to the Plaintiffs, it is merely premised on the rejection of renewal, and it cannot be deemed that such measures alone made every effort to avoid the rejection of renewal.

D. As seen earlier, as long as the refusal of the renewal of the instant contract against the Plaintiffs was null and void, the labor relationship after the expiry is identical to the renewal of the previous labor contract, and even if the employment relationship was in force, the Plaintiffs’ failure to provide labor is attributable to the Defendant who rejected unfair renewal. Thus, the Plaintiffs may claim for the payment of the entire amount of wages payable when they continued to provide labor under Article 538(1) of the Civil Act (see Supreme Court Decision 81Da626, Dec. 22, 1981). 2) At the time of the refusal of the renewal of the instant contract, the Defendant’s 1-2,805, 929, Plaintiff 2, 773, 69, Plaintiff △△△△△△ 2, 374, 320, 1, 54, 949, the following day of the instant refusal to renew the instant contract to the Plaintiff 1-2, 290,290,200,0000 won.

10.1. From January 1 to the date of the reinstatement of the same plaintiff, 2, 773, 669 won each month, 374, 320 won each month from September 20, 2009 to the date of the reinstatement of the same plaintiff, and 1,54, 949 won each month from October 1, 2009 to the date of the reinstatement of the same plaintiff.

4. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, the part against the plaintiffs corresponding to the plaintiff's rejection of renewal and the above payment order in the judgment of the court of first instance should be revoked, and the plaintiffs' claim of nullification of renewal and payment of each of the above amounts against the defendant shall be accepted and the plaintiffs shall be paid to the defendant. The plaintiffs' remaining appeals are dismissed as they are without merit.

Judges fixed-ranking of the presiding judge

Judges Kim Jae-sik

Judges Kim Gung-sik

1) Article 45 (Matters to be Stated in the Articles of Incorporation) (1) The articles of incorporation of the Corporation shall contain the following matters:

4. Matters concerning the organization of the Corporation and the chief director, directors, executive organs, and employees;

(2) Where the Corporation intends to amend its articles of incorporation, it shall obtain authorization from the Korea Communications Commission.

2) Of the 420 annual salary contract workers, 159 persons subject to business transfer, 222 persons subject to termination of a contract, 7 persons subject to conversion of arms, and 420 persons subject to conversion of arms;

There are 32 persons who are excluded from the application of fixed-term law.