2014Na35916 Confirmation of retirement age

A person shall be appointed.

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

B Educational Foundation

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

Seoul Eastern District Court Decision 2014Gahap1292 Decided June 27, 2014

October 30, 2014

November 27, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

It is confirmed that the retirement age of the Plaintiff between the Plaintiff and the Defendant by February 28, 2015.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On October 6, 1981, the Plaintiff joined the Defendant and served as the head of the RC administrative team appointment division at the university graduate school operated by the Defendant (class 3) from March 1, 2012, but the date of birth on the family register was registered on November 7, 1953, and the Defendant managed the Plaintiff’s personnel management based on this.

B. On August 8, 2013, the Plaintiff asserted that its actual date of birth was “10 January 10, 1955,” and applied for correction of the family relation register as Seoul Northern District Court 2013No4064, August 8, 2013, and the said court was the said court.

10. On November 7, 1953, the Plaintiff’s date of birth on the Plaintiff’s family relations register was decided to permit the correction of “the date of birth on January 10, 1955”. Accordingly, the Plaintiff’s date of birth on the Plaintiff’s family relations register was corrected to “the date of birth on January 10, 1955,” “5xxxxxxxxxxxxxxx.”

C. On October 28, 2013, the president of the Lee Bi-beon University, to which the Plaintiff belongs, filed an application for the correction of the Plaintiff’s resident registration number with the Defendant’s personnel team. The employee in charge of the Defendant’s personnel management received the above application on October 29, 2013, and requested the correction of the personnel master following the change of resident registration number on October 31, 2013, upon obtaining approval on October 30, 2013, and around that time, changed the Plaintiff’s resident registration number on the electronic personnel record as above, and corrected it to “the scheduled date of retirement” on February 28, 2015.

D. However, on November 2013, the Defendant re-amended the scheduled date of retirement under the Plaintiff’s personnel record as of February 28, 2014, which was the scheduled date of retirement before the correction as above.

E. As to this, the Plaintiff demanded the Defendant to revise the scheduled retirement date, but the Defendant issued a personnel order on February 1, 2014, including the Plaintiff’s transfer of another employee to the Plaintiff’s position on February 28, 2014 on the premise that the scheduled retirement date is February 28, 2014.

F. Meanwhile, the Defendant’s current personnel personnel regulations and collective agreements related to the instant case are as follows.

As for the officers of the staff of the* General Staff Regulations, the following documents shall be submitted to the officers of the staff and must be confirmed: Provided, That the finance, the fidelity guarantee and the fidelity guarantee investigation report may be substituted by the fidelity Guarantee, and the career certificate shall be submitted at the time of the appointment of career support; 1. A copy of the personnel record card (a prescribed form, a photograph attached thereto) 1 through 5. A copy of the family register (a confirmation and identity inquiry) 2 through 7. Certified copy of the resident registration (a confirmation, national health insurance and identity inquiry) 3-29 (retirement age) 1. The retirement age of the staff shall be as follows: (a) general staff of Grade 5 or higher; (b) 60 years of age, based on the end of each semester; (c) the total retirement age of the staff of Grade 38 (Personnel Records); (d) all personnel records, management and custody of the personnel records of Grade 1 to Grade 6 shall be included in the total retirement age of Grade 1 or more; and (e) the collective agreement shall be included in the total retirement age of Grade 1 in the following.

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff’s actual date of birth is January 10, 1955. Despite the fact that the date of birth on the family relations register was mistakenly registered as of November 7, 1953 and the date of birth was corrected as of January 10, 1955 by the court’s decision, the Defendant is retired from office on the basis of the date of birth at the time of employment ( February 28, 2014).

The Plaintiff’s retirement age is based on the actual date of birth, and the Plaintiff’s retirement age is sought to verify that it was up to February 28, 2015, calculated based on the actual date of birth.

B. Defendant’s assertion

As to this, the Defendant: (a) there was an express or implied agreement between the Plaintiff and the Defendant to follow the date of birth indicated at the time of employment with respect to the date of birth which serves as the basis for calculating the retirement age through collective agreements, etc.; (b) the Plaintiff’s retirement date

Despite the correction, it should be seen as February 28, 2014, which is calculated on the basis of the original date on the personnel record. ② The Plaintiff entered the date of birth at the time of entry and managed the personnel based on it. On the premise of retirement, the Defendant’s legitimate belief was formed by consenting to the provision of information on the minister’s commendation, and at least, the rectification of the retirement age at the time when he was aware of the actual date of birth at the time of entrance at an elementary school, and at least at least at least at the time when he was at the end of four months before the date of birth, contradicts the good faith principle.

3. Determination

A. The family relation register is a public document that proves the person's status, and except in extenuating circumstances, entry in the family relation register has been legally recorded and its entries are presumed to conform to the truth. Thus, as seen earlier, insofar as the date of birth in the plaintiff's family relation register was corrected, the plaintiff's date of birth is presumed to be January 10, 195.

B. In a private labor contract, in a case where an employee and an employer determine elements that affect labor relations, such as the conditions or contents of labor, the principle is that it may be determined according to the free will of the parties in accordance with the principle of private autonomy unless the employer violates the mandatory rules such as the Labor Standards Act. Accordingly, if there are provisions in the relevant Acts and subordinate statutes, they shall be followed, and if there is no such provision, they shall be governed by the rules of employment or collective agreement of the company concerned, and if there is no such provision in the rules of employment or collective agreement

However, the meaning of the date of birth, which serves as the basis for calculating the retirement age, is not specifically stipulated in the relevant Acts and subordinate statutes, such as the Civil Act and the Labor Standards Act, and the Defendant’s general personnel regulations and collective agreements also stipulate that the retirement age of employees of class 5 or higher, such as the Plaintiff, shall be at 60 years of age, and no mention is made on the date of birth that serves as the basis

그러므로 이 사건으로 돌아와 원 · 피고간의 근로계약상 정년에 관하여 보건대 , 앞서 채택한 증거들과 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ① 원고는 법원에 가족관계등록부 정정신청을 하면서 충분한 소명자료를 제출하였고 , 법원은 이를 근거로 가족관계등록부 정정신청을 받아들인 것인 점, ② 피고는 직원 채용 당시 지원자로부터 주민등록상의 생년월일을 기준으로 한 연령을 기초로 인사기록을 작성하였고, 이에 따라 원고의 입사기록카드 등에 주민등록상의 생년월일이 기재되었던 것으로 보이는 점, ③ 피고의 일반직원 인사규정에 의하면, 임용시 제출하는 호적등본, 주민등록초본, 주민등록등본은 본인 확인 및 신원조회 등의 목적으로 제출받은 것으로 임용 당시 위 호적등본 등이 제출되었다는 사정만으로 위 호적등본 등에 기재된 생년월일을 기준으로 정년을 산정하기로 하는 명시적, 묵시적 합의가 있었다고 단정할 수 없는 점, ③ 근로자가 일정 연령에 도달할 것을 이유로 일률적으로 근로계약을 종료시키는 제도인 정년제의 성격상, 정년은 원칙적으로 공부상의 생년월일을 기준으로 일률적으로 산정할 것이 아니라 근로자의 육체적 · 정신적 능력을 제대로 반영할 수 있는 실제의 연령을 기준으로 함이 타당한 점, ④ 피고는 원고의 주민등록번호 정정 신청에 대하여 정정된 가족관계등록부 기본증명서를 기초로 원고의 인사기록상 생년월일을 ' 1955. 1. 10. ' 로, 주민등록번호를 ' 55xxxx - XXXXXxx ' 로, 정년일을 ' 2015. 2. 28. ' 로 정정하기도 하였던 점 ( 피고는 전산 담당직원의 업무 착오로 원고의 정년일이 2015 .

2. Although the defendant's personnel management officer asserted that the retirement age was corrected on October 31, 2013 after obtaining approval from the employee in charge of the defendant's personnel management, the plaintiff's resident registration number and retirement age was corrected on October 31, 2013, and the time of correction did not remain more than four months, which was the plaintiff's retirement age before the correction, and the employee in charge of the defendant's personnel management knew that the retirement age was at issue due to the correction of resident registration number No. 2, and the defendant's personnel management officer knew that the retirement age was at issue due to the correction of resident registration number No. 2, it is difficult to view that the defendant obtained the plaintiff's retirement age due to a simple error in business affairs. However, although the statement of No. 24 merely stated in the evidence No. 24, it is difficult to view that the defendant obtained a legal benefit even if the plaintiff actually gained profit from promotion, etc., the defendant argued that the defendant's disadvantage under the defendant's policy was damaged due to the plaintiff's right's extension.

In addition, as long as the defendant does not violate the mandatory provisions of the Labor Standards Act, etc. under the principle of private autonomy, it shall not be deemed that the rules of employment or collective agreement may provide the basis for calculating the retirement age clearly in the future, and 7 the rules of employment have the nature of legal norms that provide collective legal relations between labor and management. Thus, the interpretation that disregards the objective meaning of the language and text or the fact-finding leading thereto should be prudent and strict (see Supreme Court Decision 2002Da69631, Mar. 14, 2003, etc.). In light of the above, it is reasonable to view that the date of birth for calculating the retirement age under the labor contract between the plaintiff and the defendant as the actual date of birth

C. As to this, the Defendant asserts to the effect that the Defendant’s legitimate belief on the Plaintiff’s retirement age was formed, and that the Defendant’s assertion to change the retirement age by correcting the date of birth at the time when the retirement age was 4 months or earlier goes against the good faith principle.

On the other hand, the principle of good faith is an abstract norm that a party to a legal relationship should not exercise his right or perform his duty in a way that violates the principle of good faith by taking into account the other party’s interest. In order to deny the exercise of such right on the ground that it violates the principle of good faith, there must be a good faith provided to the other party, or the other party’s personal belief should be objectively viewed, and the exercise of right against such other party’s trust should be in an unreasonable state to the extent that it is not acceptable in light of the concept of justice (see Supreme Court Decision 2001Da67126, Mar. 15, 2002, etc.). The defendant’s personnel regulations or collective agreement do not limit the period of application for change of personnel records (the defendant cannot be interpreted as not having provided for change of personnel records at the time of application for change of personnel records, but it cannot be interpreted as having provided any erroneous information at the time of application for change of personnel records with the Plaintiff’s new appointment authority’s consent to the date of birth or new appointment.

D. Therefore, in this case, the date of birth for calculating the Plaintiff’s retirement age should be " January 10, 1955 presumed to be the actual date of birth". The Plaintiff’s retirement age calculated based on this should be seen as February 28, 2015 in accordance with Article 29 of the Defendant’s General Personnel Management Regulations and Article 31 of the collective agreement, and as long as the Defendant contests this, the Plaintiff’s benefit to seek the confirmation of the above retirement age should also be recognized.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-dae

Judge Lee Jin-hun

Judge Choi Jin