2006 Gohap572 Nullification, etc. of dismissal

c) was made

Omission of Address

Funds

Omission of Address

July 21, 2006

August 25, 2006

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant confirmed that his dismissal against the plaintiff on August 5, 2005 is null and void. The defendant shall pay to the plaintiff 36,815,650 won with 20% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day of complete payment, and the amount calculated at the rate of KRW 7,363,130 per annum from January 2006 to the day of complete payment.

1. Basic facts

From June 2005, the Defendant Fund reduced its organization as a part of the rationalization of management, and agreed to adjust the number of persons, and as a result of the reorganization plan for the human resources subject to restructuring, to recruit and recommend voluntary retirees who wish to retire from the Defendant Fund, thereby having them finalized and implement the policy to enable them to retire from the Defendant Fund. In April 1989, the Plaintiff was working for the Defendant Fund upon joining the Defendant Fund in accordance with the above policies, and submitted a resignation letter from the Defendant Fund, and the Defendant Fund received it and received it and received it on August 5, 2005, there is no dispute between the parties.

2. The plaintiff's assertion

The plaintiff unilaterally selected those subject to retirement including the plaintiff pursuant to the "Standards for Selection of those subject to restructuring" and forced or threatened the plaintiff to submit his/her resignation to the defendant fund without any intention of resignation. Thus, the plaintiff submitted his/her resignation to the defendant fund inevitably without any intention of resignation. Thus, the plaintiff's retirement of this case constitutes a de facto dismissal that actually ends the labor relationship of workers who have no intention of resignation by the unilateral intention of the defendant fund, and therefore, the plaintiff asserts that the retirement of this case is null and void as

3. Determination

A. On the other hand, when an employer prepares and submits a written resignation to an employee who has no intention to resign, and then terminates a labor contract by taking the form of acceptance, it shall be deemed that the employee only takes the form of dismissal from office and actually constitutes dismissal. In this case, the employee submitted a written resignation under the absence of the intention to terminate the labor contract and the employer accepted the written resignation with the knowledge of these circumstances. Thus, the employee's expression of intent shall be deemed null and void by the so-called expression of intent, not the so-called expression of intent. In this case, the expression of intent refers to the expression of intent to express a specific content, and it does not mean the expression of intent in the genuine mind. Thus, even if the contents of the expression of intent were not expressed in the genuine mind, it shall not be deemed as the expression of intention not having the intention to take effect in the deliberation, and therefore, the employee's retirement based thereon shall not be deemed as a dismissal under the employer's unilateral intention, unless there are any special circumstances.

B. (1) From the above perspective, the following facts can be acknowledged in full view of the Plaintiff’s specific reasons for retirement, the statement of documentary evidence, and the witness’s testimony.

(A) Management status of the Defendant Fund at the time of recruiting honorary retirees of this case

① In order to overcome the foreign exchange crisis, the government promoted economic recovery to foster industries such as IT, but since the fourth quarter of April, 200, as the venture industry faces collapse in the global economy, it was necessary to provide a new support plan for venture industry such as IT to promote the economic recovery. The defendant Fund introduced a P-CBO guarantee system for venture businesses in February 2001 as part of the plan.

However, as the overall economy has continued since 2003, P-CBO guarantee accidents have increased significantly, and further, the P-CBO guarantee period of venture businesses introduced in 2001 has reached an intensive arrival in 2004, and the financial crisis of the defendant fund has deepened.

② From March 14, 2005 to May 16, 2005, the Board of Audit and Inspection conducted an audit on Defendant Fund. As a result, the liquidity of Defendant Fund was merely 138 billion won and it was insufficient to deal with the defective guarantee that occurred, and the operating multiples indicating the financial stability of the Fund was significantly higher than the appropriate level, and it was anticipated that the shortage of funds will continue until the end of the year, and such financial difficulties continued, it was judged that it would be difficult to operate the normal guarantee business of Defendant Fund in the future, and the president of Defendant Fund was also accused by the Board of Audit and Inspection.

③ Accordingly, the Ministry of Finance and Economy, as a future measure to overcome the above financial crisis, demanded that the Defendant Fund be responsible for the financial insolvency, and the Defendant Fund be promoted a strong self-help efforts plan, such as reduction of personnel expenses, restructuring of organization and human resources, and sale of holding assets including real estate, etc., and expressed its position to implement a plan for expansion of specific financial resources in connection with the performance of self-help efforts by the Defendant Fund. The president of the newly appointed Defendant Fund announced a debate to the public and declared that the president of the new vice president of the Defendant Fund, who was in charge of the offense against the citizens, also the vice president of the Defendant Fund, who was in charge of the crisis of the Defendant Fund, will take the responsibility of the Defendant Fund, and the National Assembly also announced his/her name to hold his/her responsibility for the Defendant Fund liable.

(b) Recruitment of honorary retirees and the process of their retirement;

① The Defendant Fund’s corporate restructuring by reducing the headquarters organization from 10-2 to 7-2 rooms, closing the four regional headquarters and the management center, reducing 16 business points, etc. In addition, the Defendant Fund integrated the headquarters into Busan and continued to carry out self-help efforts, such as transferring its assets, selling its assets, etc. In order to improve the productivity of the guaranteed portion, the Defendant Fund held a labor union and the labor-management countermeasure conference from the end of June 2005, but held several meetings on July 20 of the same year to implement human resources restructuring, which reduces approximately 225 employees’ 20% of the total employees.

② The Defendant Fund established the above labor-management agreement in consultation with the labor union, while organizing a ice team for the restructuring of human resources, formulating the criteria for the selection of retired recipients, and setting the criteria for selection of eligible recipients on July 26, 2005, and finally establishing the criteria for selection of restructuring. The criteria for selection of restructuring include the selected items, referring to the constituent elements and proportion of Article 9 of the “General Work Evaluation Regulations” and Article 4 (Evaluation Items and Marks) of the “Standards for Evaluation of Work Performance Evaluation of Professional Manpower for Technology Evaluation” in order to ensure reliability and fairness based on objective grounds, and reflect the results of evaluation in special cases for restructuring for the purpose of labor adjustment implemented by special agreement and special agreement. The uniform evaluation of all employees is unreasonable, taking into account the difference between the assigned duties and allocated points for each item, so that all employees are selected as eligible for recommendation for retirement with priority.

③ As the above criteria are established, the Defendant Fund received a desired voluntary retirement application to reduce or adjust the number of human resources subject to restructuring in the way of voluntary retirement, and paid them special retirement allowances and retirement consolation benefits in addition to the statutory retirement allowances under the condition of voluntary retirement, in addition to the statutory retirement allowances, and decided to separately employ the employees as debt collection human resources of the Defendant Fund or implement the transfer support program when they wish to do so.

④ According to the criteria for selection of persons eligible for recommendation to be subject to the above restructuring, the Plaintiff was assessed as the 19th order of retirement among 28 persons scheduled to retire in Grade 2. The chief of the personnel department of the Defendant Fund notified each of the results of the evaluation to the persons recommended to retire in accordance with the above criteria for selection. The Plaintiff was notified of the results of the above evaluation and interview with the chief of the personnel department, and then the Plaintiff was found in the personnel department and submitted a written resignation in writing at his own discretion. Through this process, three persons were submitted between July 29, 2005 and August 1 and 2 of the same year, and the Defendant Fund was accepted by the resolution of the personnel committee on April of the same month.

⑤ According to the voluntary retirement of this case, the Plaintiff received a total of KRW 124,326,827 with special retirement allowances and KRW 52,625,112 with retirement consolation money in addition to the amount of KRW 176,951,939, and entered into an employment contract with the Defendant Fund to work as a debt collection group on November 28, 2005.

(2) In light of the Plaintiff’s circumstances and before and after the fact of the above recognition, even though the Defendant Fund provided explanation about the inevitable situation of the Defendant Fund and its restructuring in the course of inducing other employees including the Plaintiff to retire regardless of their will, it cannot be deemed that the Plaintiff submitted the instant resignation report without any justifiable reason, and there is no other evidence to acknowledge it. Rather, the Plaintiff did not appear to have any other circumstance where the Defendant Fund is faced, there is no possibility of including the subject of layoff in the case of layoff, possibility of including the Defendant’s voluntary retirement according to the reorganization standard, and understanding loss in the case of retirement and continuous work, etc., even if the Defendant Fund decided on such intention or did not respond to the above recommendation for retirement, it cannot be deemed that the Plaintiff’s assertion that it was the situation at the time of retirement, not the Plaintiff’s declaration of intention at the time of retirement, based on the premise that it was no longer necessary to submit the pertinent resignation report.

4. Conclusion

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

The presiding judge shall be appointed by a judge;

Judge Jina decoration

Judges Hwang Young-hee