[Judgment of the court below]

The Chairman of the National Labor Relations Commission

The Saemaul Movement Federation, an incorporated association (Law Firm Sejongsan, Attorneys Lee Dok-su et al., Counsel for the defendant-appellant)

March 2, 2018

Seoul Administrative Court Decision 2016Guhap71171 decided July 6, 2017

1. Revocation of the first instance judgment.

2. On June 29, 2016, the National Labor Relations Commission rendered a revocation of the final decision made by the Korea Saemaul Movement Federation, which was an incorporated organization of the Central District Court No. 2016, No. 386 between the Plaintiff and the Defendant joining the Defendant, with respect to the application for retrial

3. Of the total costs of the litigation, the part resulting from the participation is borne by the Defendant’s Intervenor, and the remainder by the Defendant respectively.

The same shall apply to the order.

1. Quotation of the first instance judgment

The reasoning for the court's reasoning of this case is as follows: (a) the intervenor at the second 9th 2th eth 9th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth 9th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth

[Supplementary Use]

2) Whether the provision of this case is effective

In light of the aforementioned facts and the overall purport of the pleadings, the instant provision is deemed null and void by infringing upon the right to obtain the benefit regarding the retirement age already occurred due to the violation of Article 19 of the Elderly Employment Act and the unfavorable application to the Plaintiff, even if the retirement age based on the foregoing is below the retirement age based on the actual date of birth, even if the retirement age based on the above is below the retirement age based on the actual date of birth, and the method of correcting wrong dates of birth and reflecting the actual date of birth is entirely not permitted.

A) According to the instant provisions that came into force on September 8, 2015, an employee’s retirement age calculation was based on the date of birth indicated in the personnel record card that was prepared at the time of entry. On July 23, 2015, the Intervenor entered into the instant agreement with the instant trade union to apply the instant provision to the employees who were in office at the time of the enforcement of the agreement, and approximately 93% of the Intervenor’s employees agreed to the instant agreement.

B) The meaning of the date of birth, which serves as the basis for calculating the retirement age, is not specifically prescribed by the relevant Acts and subordinate statutes, such as the Civil Act and the Labor Standards Act. However, in light of the fact that setting the basis of the actual age that can reflect the physical and mental ability of workers at a certain age accords with the nature of the system that uniformly terminates the labor contract on the ground that the employee reaches a certain age, the retirement age ought to be calculated based on the actual date of birth (see, e.g., Supreme Court Decision 2016Da249236, Mar. 9, 2017).

C) The date of birth on the Intervenor’s personnel record card appears to have been made on the basis of a public document certifying the status of the intervenor, such as a family register or a certified copy of resident registration, submitted at the time of entry of the intervenor into the intervenor company. This seems to be based on the intent to take the actual status relationship of the worker on the strong premise that the descriptions of the public document would conform to the truth.

D) However, on June 17, 2015, the date of birth on the Plaintiff’s family relations register was corrected as “(date of birth 1 omitted)” from “(date of birth 2 omitted)” by the court’s decision of permission for correction. Accordingly, the Plaintiff applied for the change of the date of birth on the instant personnel records card to the intervenors twice on July 15, 2015 and September 1, 2015.

E) Article 86(4) of the Enforcement Rule of the Intervenor’s Personnel Regulations provides that when an intervenor receives an application for change of personnel records, the intervenor must arrange the personnel records card of the relevant employee without delay. Thus, the intervenor rejected the application to change the date of birth according to the Plaintiff’s above personnel records card application.

F) At the time of receiving an application for change of a personnel record card from the Plaintiff on July 15, 2015, in light of the purport of the retirement age system as seen earlier and the fact that Nonparty 1 and Nonparty 2, who is an employee of the Intervenor, calculated the retirement age on the basis of the changed date of birth according to the court’s decision, it can be deemed that there was an implied agreement to regard the retirement age as the actual date of birth in calculating the retirement age.

G) On September 8, 2015, the enforcement date of the instant provision is on and after July 15, 2015, for which the Plaintiff applied for the change of the personnel record card according to the court’s decision to permit the correction of the registry, and thus, the starting date of the Plaintiff’s retirement age prior to the amendment of the instant provision ought to be based on the actual date of birth (date 2 omitted). Therefore, even if the Intervenor obtained the consent of the trade union and employees while amending the instant provision, it is related to the right of vested rights to retirement for the finalized Plaintiff’s retirement age, and thus, it cannot be retroactively applied to the Plaintiff without

2. Conclusion

Therefore, the instant provision is not applicable to the Plaintiff, and it is reasonable to apply the instant provision to the Plaintiff even if the retirement age falls under an unfair dismissal, and the instant decision on retrial should be revoked in an unlawful manner. Since the judgment of the first instance is unfair, the judgment of the court of first instance is so unfair as to accept the Plaintiff’s appeal and to revoke the instant decision on retrial, it is so decided as per Disposition.

Judges Han Chang-hun (Presiding Judge)