The case holding that if a company without any provision on the procedure for claiming the annual leave under the rules of employment requests the worker to take the annual leave and does not work after making a telephone, the company has lawfully exercised the annual leave right.

The case holding that if a company without any provision on the procedure for claiming a annual leave under the rules of employment does not work for a worker due to mutual assault with a person driving on the same kind of work, and if the company's vehicle guidance and the head of the general affairs department request him to continue to work for the period of treatment by telephone, it is legitimate to claim a annual leave, and there is no evidence to deem that the company exercised the right of visual change under the proviso of Article 48 (3) of the Labor Standards Act, and therefore, it cannot be deemed that the above worker is absent from work because he exercised the right of annual leave.

Articles 27 and 48 of the Labor Standards Act

[Judgment of the court below]

The Chairperson of the National Labor Relations Commission

Defendant’s Intervenor (Attorney Kang Sung-sung, Counsel for the defendant’s intervenor)

Seoul High Court Decision 91Gu1099 delivered on November 22, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

(1) Based on macroficial evidence, the court below rejected the Intervenor’s request for dismissal on April 13, 190 to the 29th of the same month, which stated that the Intervenor could dismiss the Intervenor without permission for at least five days since the Intervenor was absent from work without permission, pursuant to Article 50 subparag. 2 of the Rules of Employment of the Plaintiff Company. The Intervenor did not work for the 13th to 29th of the same month because he suffered bodily injury due to mutual assault with Nonparty 1, who is a ficial driver on April 12 of the same year. The Intervenor did not work for the 13th of the same month. The Plaintiff Company's request for dismissal without permission from the 2nd of the same month to the 3th of the same month. The Plaintiff Company's request was rejected on the ground that the Intervenor did not work for the 2nd of the same month to the 17th of the same month. The Plaintiff Company's request for dismissal from the 3th of the same month to the 2nd of the same month.

In light of the records, the above fact finding by the court below is justified, and there is no illegality of misconception of facts due to violation of the rules of evidence, such as theory of lawsuit, and among the judgment below, the facts finding that the intervenor did not work from April 12, 1990 to April 29 of the same month due to the injury suffered by the mutual assault with non-party 1 on April 12, 1990 shall be deemed to have started not to work from the 13th of the same month for the treatment of the injury suffered by the above assault, rather than to the purport that the physical size was inconvenient during the whole period, since the injury suffered by the above assault was the part and the degree of the injury suffered by the above assault, and therefore, the part of the judgment of the court below

(2) Article 48(1) of the Labor Standards Act provides that an employer shall grant a paid leave of 10 days to a person who has worked for a period of not less than 90 days, and 8 days to a person who has worked for a period of not less than 1 year. Paragraph (2) provides that an employer shall grant a paid leave of 1 day to a person who has worked for a period of not less than 2 years plus 20 days for the number of consecutive work years exceeding 1 year: Provided, That where the total number of days of leave exceeds 20 days, ordinary wages may be paid for the number of days exceeding 20 days. Paragraph (3) provides that a paid leave of 1 and paragraphs (1) and (2) shall be granted at the time of request of the employee, and that a paid leave of 20 days or average wages shall be paid for that period under the rules of employment or other regulations. Provided, That where granting a paid leave of 20 days at the time of request of the employee causes serious trouble to the operation of his business, it may be amended.

According to Gap evidence Nos. 10 (Employment Rules) and non-party 3's testimony of the first instance court, Article 23 of the Rules of Employment of the plaintiff company provides every week Sundays as a day off. On the other hand, the fact that the worker did not specify the procedure for claiming the annual leave, and the annual leave days held by the intervenor as of April 13, 1990 can be recognized as 17 days and there is no other counter-proof. Thus, as the court below duly admitted, the court below decided that the intervenor's request that the plaintiff continued the annual leave on April 13, 1990, which is the driver's chief of the plaintiff company's vehicle department, and the non-party 2 and the chief of the general affairs department, to the non-party 3, who is the non-party 3, who is the non-party 1, the plaintiff company's first instance court did not exercise the right to change the visual leave under the proviso of Article 48 (3) of the Labor Standards Act. Thus, the court below's decision did not err by misapprehending the legal principles that the plaintiff did not use the right to work.

(3) Article 50 subparag. 7 of the Rules of Employment of the Plaintiff Company provides that the case of dismissal shall be subject to criminal conviction. Thus, unless the Defendant was sentenced to criminal conviction at the time of the disciplinary action as in this case, even if it is anticipated that it would be almost clear that the Defendant would be convicted in the future, such circumstance alone may not dismiss the Intervenor by applying the above provision. The decision of the court below to the same effect is justified and 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 Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)