-205 Gohap61701 Damage, n.e.,

Plaintiffs

1. The defendant corporation;

2. 피고 ㅇㅇㅇ

April 6, 2006

May 18, 2006

1. The plaintiffs' claims against the defendants are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendants pay 13,00,000 won to each of the plaintiffs.

1. Facts of recognition;

The following facts are not disputed between the parties, or found by the evidence presented in the record:

(a) Defendant Co., Ltd owns not less than 100% of the total number of shares issued by each affiliated company or 51% of the total number of shares issued by each affiliated company.

B. The Plaintiffs, as executive officers and employees of the Defendant Stock Company, were selected and appointed as executive officers of affiliated companies for at least 20 years, and worked as follows.

16. Around February 25, 2005, Defendant ○○○○ assumed office as the representative director of the Defendant Stock Company and demanded the executives of affiliated companies, including the Plaintiffs, to submit a written resignation in a lump sum in order to promote the personnel management of the executives of the Defendant Stock Company. Accordingly, 25 affiliated companies, including the Plaintiffs, including the Plaintiffs, have submitted a written resignation. Among them, 23 resignations, including the Plaintiffs, have been accepted, and only two resignations have been returned, and the said 23 employees were all dismissed through a resolution of the board of directors and the general meeting of shareholders of each affiliated company.

D. When the representative director of the Defendant Stock Company is replaced, each of the executives of each of the affiliated companies is ask for a re-identification against the Defendant Stock Company, which is a single shareholder or major shareholder of each affiliated company, regardless of their terms of office.

The general practice was to submit a written resignation to the purport that the result of the submission was not certain, such as the acceptance or return of the written resignation.

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion (1) is a false statement to the effect that the defendants' new president of the defendant corporation's company was appointed, and thus, the submission of a resignation letter is a form and customary one to the president of the affiliated company. In addition, in the situation where the representative director of the defendant corporation owns most of the shares of the affiliated company and the defendant corporation exercises substantial influence on the personnel administration of the executives of the affiliated company, the plaintiffs submitted a resignation letter by force of the defendants.

(2) The submission of a lump sum of resignation is a formal act that has been made at all times whenever the representative director of the defendant corporation is elected, and the plaintiffs did not have business errors or personal errors that could receive the resignation, and the three-year term of office guaranteed by the articles of incorporation of each affiliated company did not expire. Therefore, the plaintiffs submitted a resignation certificate at all without their own intention to resign, and the defendants were fully aware of these facts. Therefore, as long as the plaintiffs' declaration of intention to resign is null and void as it is in accordance with Article 107 of the Civil Code. (3) As such, as long as the expression of intent to resign is null and void, even if the above declaration of intention of the plaintiffs is null and void, it is practically that the defendant corporation's affiliated company terminated the labor contract relationship at least three years prior to the expiration of the term of office under the articles of incorporation by the defendants' unilateral intent, and thus, it constitutes an unfair dismissal without justifiable grounds. (4) Therefore, the defendants are liable to pay consolation money to the plaintiffs due to the above acts of deception and coercion as above, thereby making the plaintiffs liable for mental pain 1000.

B. Determination

(1) First of all, the issue of whether the Defendants forced or deceiving the Plaintiffs to submit a written resignation is examined. (2) Defendant corporation is a single shareholder or major shareholder of an affiliated company in which the Plaintiffs were working as representative director or director, and Defendant ○○○○ is the representative director of the Defendant corporation. The Defendants are in the position to exercise considerable influence on the Plaintiffs’ personnel management is as stated in the above 1st facts. However, such circumstance alone does not necessarily lead the Plaintiffs to have expressed their intent to resign from the Defendants that they would cause harm and injury. However, the testimony of the Defendants’ 1 through 6, and 13 as stated in the 2nd evidence and the witness’s testimony is insufficient to recognize the Defendants’ deception or coercion, and there is no other evidence to acknowledge this differently, and this part of the Plaintiffs’ assertion is without merit. (2) Since the Defendants’ request for submission of collective resignation and selective repair are practically giving labor to the Defendants prior to the expiration of the term of office, it constitutes a specific form of the company’s labor contract under the Labor Standards Act, regardless of the employer’s intention to be subject to supervision or independent of the form of the contract.

The Supreme Court Decision 2002Da64681 delivered on September 26, 2003). However, the representative director and directors, etc., who have management authority of a stock company, are generally entrusted with certain business affairs by the company. Barring special circumstances, the relationship between such company and its officers shall be deemed to exist not in a contract of employment and a delegation contract, provided certain labor under the employer’s direction and supervision, and provided certain wages. Unless there is any evidence that the representative director and directors of each affiliated company are formally and nominal, and that there is a relationship of remuneration for providing certain labor under the employer’s direction and supervision, it cannot be deemed that the Plaintiffs constitute a worker under the Labor Standards Act. Accordingly, this part of the Plaintiffs’ assertion on this premise is without merit. (3) Lastly, even if the Plaintiffs’ expression of intention to resign falls under a de facto declaration of intention and thus constitutes the Plaintiffs’ dismissal of the representative director of the company, the Plaintiffs’ assertion that it constitutes the Plaintiffs’ assertion or dismissal of the representative director of the company.

The circumstance alone is insufficient to readily conclude that only a mere formal and customary form was made without the deliberation intent to resign from the plaintiffs, and there is no other evidence to acknowledge it.

Rather, as seen in the above paragraph (1), when the representative director of the defendant corporation is newly elected, submission of a written resignation to the effect that the executives of each affiliated company or the defendant corporation who is a major shareholder are re-identifications to each affiliated company. In light of the fact that the result of the management of the written resignation submitted was not clearly fixed, even if the plaintiffs were not genuine in mind at the time of submitting the written resignation, it may be accepted in the situation at the time of the submission of the written resignation in consideration of the relationship between the defendant corporation and each affiliated company, and the past precedents, but it is possible to continue to maintain that position because it is possible to return the written resignation, rather than refusing to submit the written resignation, it is reasonable to deem that the plaintiffs voluntarily expressed their intent to resign after submitting the written resignation.

Therefore, the delegation contract relationship between the plaintiffs and each affiliated company in which the plaintiffs and the plaintiffs were employed is agreed upon by the plaintiffs' declaration of intention of resignation and acceptance of each affiliated company as above. Thus, the plaintiffs' declaration of intention of resignation is null and void as a bad declaration of intention, and further, this part of the plaintiffs' assertion is without merit, which is premised on the fact that each affiliated company's treatment as a member dismissal constitutes a substantial dismissal.

3. Conclusion

Therefore, all of the plaintiffs' claims against the defendants are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jae-soo

Judges Hong Sung-sung

Judges Cho Jong-tae