(영문) 춘천지방법원 강릉지원 2012.7.10. 선고 2011구합762 판결

1. The Defendant’s refusal to pay a new employment promotion subsidy against the Plaintiff on October 27, 2010, with the exception of the parts concerning B, C, D, and E, shall be revoked.

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

Purport of claim

The text is the same as the order (it appears that November 3, 2010, which is written in the written complaint as the date of disposition, appears to be a clerical error).

Reasons

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as stated in Gap evidence Nos. 1, 2, 3, and 4-1 through 4, and Eul evidence No. 1:

A. The Plaintiff is a company that manufactures medical devices, such as the separation of the lower court, in Gangnam-si F Complex G.

B. On April 20, 2010, the Plaintiff filed an application for new employment promotion subsidy (hereinafter “instant subsidy”) with the Defendant on December 2009 pursuant to Article 23 of the Employment Insurance Act and Article 26 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; hereinafter the same) on the ground that the Plaintiff was newly employed as a long-term job seeker D and 21 persons, as shown in attached Table 1 (hereinafter “instant application”). (hereinafter “instant application”).

C. However, on October 27, 2010, the Defendant refused payment on the ground that the Defendant was not eligible for the instant incentive pursuant to Article 23 of the Employment Insurance Act, Article 26 of the former Enforcement Decree of the Employment Insurance Act, and Article 44(3)1 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 17, Jan. 3, 201; hereinafter the same).

D. Meanwhile, among D and 21 others, employed by the Plaintiff as of December 31, 2009, B, C, D, and E voluntarily withdrawn within 12 months after physical use. The Plaintiff is disputing only 18 workers, excluding the above 4 workers (hereinafter referred to as "the instant workers") following the employment of 18 workers (hereinafter referred to as "the instant workers").

E. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on December 16, 2010, but the said commission dismissed the Plaintiff’s appeal on May 24, 201.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On December 31, 2009, the Plaintiff entered into each of the instant employment contracts (hereinafter “each of the instant employment contracts”) with the instant workers without setting the term of the employment contract. While the Plaintiff stated “from December 31, 2009 to December 12, 2010, the term of each of the employment contracts (Evidence A; hereinafter “each of the instant employment contracts”) submitted by the Plaintiff at the time of the instant application,” the Plaintiff’s officer stated that “from December 31, 2009 to December 30, 2010.” However, the instant disposition based on the premise that the term of each of the instant employment contracts was fixed is unlawful.

B. Relevant statutes

Attached 2 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

(1) The key issue of the instant case is whether the term is fixed in the instant employment contract, and in a case where an employee and an employer prepare a written employment contract fixing a period in the course of concluding the employment contract, it shall be deemed that a fixed term of employment contract was concluded between the employee and the employer in accordance with the terms and conditions of the written employment contract, which is a disposition document. However, in a case where it is deemed that the fixed term of employment is merely a mere form by comprehensively taking into account the content of the written employment contract, the motive and circumstances leading up to the formation of the employment contract, the purpose and genuine intent of the party concerned, practices of concluding the same kind of employment contract, and the worker protection regulations, the written employment contract was concluded without a fixed term of time (see, e.g., Supreme Court Decisions 2005Du5673, Feb. 24, 2006; 2005Du247, Jul. 12, 2007).

(2) In full view of the following facts, the following facts are recognized in light of the health care unit, Gap evidence Nos. 5 to 18, Eul evidence Nos. 2 to 9 (including additional evidence with a serial number), and witness H's testimony as a whole:

(A) The Plaintiff was a company with its head office in Incheon. Around 2009, there was a need for 20 workers to work in the above factory with a new factory located in the Gangseo-si F Complex. In order to obtain the instant incentive, the Plaintiff was recommended by the long-term job seekers through the Gangwon-do Integrated Employment Support Center to which the Defendant belongs, and confirmed to employ the instant workers on October 2, 2009. From October 26, 2009 to November 20 of the same year, the instant workers were subject to dancing training for employment at the school from December 19 to December 23 of the same year, and the Plaintiff was required to prepare the instant employment contract from May 200 to May 14 of the same year as the Defendant’s annual salary from May 14 to 201, and the Plaintiff was required to prepare the instant employment contract with each of the instant workers on March 13, 201.

(C) On March 16, 2010, the Plaintiff received the form of the employment contract to be attached to the application from the person in charge of the Gangnam Integrated Employment Support Center, which belongs to the Defendant, by e-mail. On April 20 of the same year, the Plaintiff prepared each of the instant employment contract with the instant workers by using the above employment contract form. However, the period of each of the instant employment contract is "from December 31, 2009 to December 30, 2010," respectively.

D. On April 20, 2010, the Plaintiff submitted each of the instant employment contracts to the Defendant. At the time, the Defendant transferred the instant application to the Incheon Northern District Office of Employment and Labor (hereinafter referred to as the “Seoul Northern District Office”) having jurisdiction over the Plaintiff’s head office (after confirming that the Plaintiff’s head office has been transferred to Gangnam District Office on August 30, 2010, and re-transfer the instant application form to the Defendant). The Incheon Northern District Office raised questions as to whether the period of each of the instant employment contracts was not fixed, based on the written statement on the period of each employment contract in each of the instant employment contracts. The Plaintiff submitted the revised employment contract to the Incheon Northern District Office of Employment and Labor, which was drafted as the annual salary of 10 days to 20 days, and the said branch office again prepared the employment contract to 10 days to 20 days to 30 days to 10 days to 20 days to 30 days to 10 days to 20 days to 20 days to 20 days to 20 days to 10 days to .

The term of a labor contract: The term of a labor contract from May 1, 2010 to April 30, 2011 (12 months) shall be one year, and where there is no particular objection between the parties even after the termination of the contract, the term of the labor contract on the annual salary system shall be considered to have been automatically extended. Even during the term of a labor contract, if it is deemed inappropriate to continue to work, such as a failure to work or failure, even during the period of a labor contract, the contract may be dismissed or terminated according to

G. 16 workers except K (one-year work) and L (two-year work) among the instant workers have worked in the Plaintiff's Gangnam Factory until December 30, 2010, which is the expiration date of each of the instant employment contract, and even before May 201 and May 2012, the Plaintiff and the annual salary contract were re-written. The part concerning the term of the employment contract in the Plaintiff's employment rules (Evidence A 14) are as follows.

Article 5(1): A person employed as a member shall sign and seal the employment contract and enter into the employment contract.Article 5(2): Except where the contract period is fixed, the contract period shall be one year, except where there is no special reason after the termination of the contract period, and where both parties do not raise an objection, the automatic renewal shall be deemed to have been made.Article 5(3) : A member employed as a day duty, a contract period, a commission duty, or a temporary worker may enter into a separate employment contract within the scope of one year by the agreement of the parties and shall be deemed to have automatically retired upon the termination of the contract period: Provided, That the contract may be renewed by an agreement between the parties: Article 5(4) : A total sum of the allowances shall be determined in advance in accordance with the agreement between the parties.

The majority of the instant workers are those who graduated from the machinery department, electricity department, and electronic department of M college and possess the relevant certificate of qualification, and are in charge of designing and manufacturing medical devices such as the separation machine of the lower court while working in the Plaintiff company.

(3) As seen earlier, it is doubtful that the Plaintiff’s employment contract includes “one-year employment contract” between December 31, 2009 and December 30, 2010. According to the above, there are questions as to whether each of the instant employment contract exists a fixed period. However, Article 5 of the Plaintiff’s employment rules provides for the method of concluding each of the instant employment contracts, i.e., dividing the employees into a large number of full-time and non-regular workers, and then automatically renew the employment contract after the lapse of the fixed period of employment contract, and most of the Plaintiff’s employees who work for the instant period of employment are subject to the employment contract after five months or more each year, including the Plaintiff’s annual salary plan and the annual salary plan of this case, which is not an annual salary plan of this case, as well as the annual salary plan of this case, which is newly prepared after the expiration of the employment contract and the annual salary plan of this case.

(4) Therefore, the instant disposition based on the premise that the period of each of the instant labor contracts was fixed is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.