Whether the executory power of the title of debt is extinguished upon the lapse of retirement age where an order is issued to pay wages until the dismissed worker is reinstated in the text of the judgment (affirmative)

In a lawsuit seeking confirmation of invalidity of dismissal, where it is ordered to pay wages according to a certain amount of amount until the dismissal is reinstated in the original position in addition to the confirmation of invalidity of dismissal in the lawsuit seeking confirmation of invalidity of dismissal, the phrase "before the dismissal is reinstated" as indicated in the disposition shall be interpreted to mean that the dismissal of the dismissed worker is invalid and maintains the status of the worker within the scope of the retirement age. Therefore, the executory power of the title

Article 27 of the Labor Standards Act, Article 505 of the Civil Procedure Act

[Defendant-Appellant] Han-gu et al., Counsel for defendant-appellant-appellant

Defendant

Busan High Court Decision 91Na17009 delivered on October 23, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

As determined by the court below, if the retirement age of the employee of the plaintiff company was set at 60 years of age under the rules of employment as of October 1, 1980 and the collective agreement as of May 30, 1981, it seems that the defendant's retirement age under the collective agreement as of August 30, 1982 (the original decision's explanation as of May 30, 1982 seems to be a clerical error) was reduced to 55 years of age under the collective agreement as of August 30, 1982 (the subsequent provision was increased to 56 years of age under the collective agreement as of June 28, 191, and the retirement age was applied from July 1, 1991). If the defendant who is in the position of the employee of the plaintiff company was born on March 9, 1936, the retirement age under the rules of employment as of the plaintiff company still remains at 60 years of age, and even if there were matters agreed by the labor and management council, the court below erred by misapprehending legal principles.

In addition, according to the collective agreement of June 28, 1991, the court below determined that when an employee wants, the retirement age may be extended for a fixed period not exceeding two years, but if the plaintiff company refused the defendant's application for extension of retirement age, even if the plaintiff company refused the defendant's application for extension of retirement age on the same ground as the theory of lawsuit, the defendant's retirement age cannot be extended. Therefore, the court below's decision to the same purport is correct, and there is no violation of law such as the theory of lawsuit.

The theory of the lawsuit set the effective date of the retirement age provision which raised the age limit of 56 at the age of 56 on March 1, 1991 as the effective date of the collective agreement on June 28, 1991 at the age of 7.1 of the same year is to give disadvantages to the defendant only, and it is in violation of the principle of equity and the principle of good faith. However, it cannot be a legitimate ground for appeal since it is not asserted by the fact-finding court. In addition, there is no circumstance that setting the effective date of the retirement age provision of the above collective agreement as the theory of the lawsuit only would give disadvantages to the defendant.

In a lawsuit seeking confirmation of invalidity of dismissal, where a certain amount of wages is ordered until a dismissed worker is reinstated in his/her original position, the phrase "not later than the date of his/her dismissal" as indicated in the order shall be interpreted to mean that the dismissal of the dismissed worker is invalid and that his/her status shall be maintained within the scope of the retirement age. Thus, upon the lapse of the retirement age, the executory power of his/her debt title shall be extinguished. If the dismissed worker conducts compulsory execution based on the above debt name after the retirement age has expired, the dismissed worker shall obtain profits from the employer's property without any legal ground and thereby causes damage to the employer. Accordingly, the decision of the court below to the same purport shall be justified, and there is no violation of the law of law such as the theory of lawsuit. All arguments are without merit

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)