(a) Whether an employer’s separate disposition is necessary for the termination of a labor relationship, in case where the cause occurs only with the actual intention, or where the labor relationship naturally terminates on the fixed date or where the collective agreement provides that the worker retires, etc. provides that the labor relationship shall be terminated; and

(b) The case holding that the retirement disposition against an employee is subject only to the occurrence of the above reasons pursuant to the collective agreement which provides that where an application for extension of the period of temporary retirement is not taken within the prescribed period after the expiration of the period of temporary retirement, it shall be deemed that the automatic retirement was

(c) The case holding that the retirement disposition deemed as the “B” has a justifiable ground under Article 27(1) of the Labor Standards Act

(d) The criteria for recognizing the benefit of a lawsuit seeking a judgment seeking nullification of dismissal which is merely a previous legal act;

(e) The case holding that there is no benefit in confirmation on the ground that, even if a lawsuit seeking nullification of dismissal is aimed at restoring the status under an employment contract, the worker loses his status as an employee at the time of the conclusion of fact-finding proceedings, and thus, it became impossible for

A. If the labor-management considers that there is a reasonable ground to treat a certain reason differently from other grounds for dismissal of disciplinary action applied to the workplace in question according to the genuine agreement of the labor-management, and the occurrence of such reason alone is the occurrence of the cause or the occurrence of the cause as a matter of course at the prescribed date, or the collective agreement provides that the labor relationship is terminated or the worker is retired, such ipso facto retirement provision shall be deemed to have the purpose of deeming that there is a retirement disposition for the worker in question on the prescribed date or on the prescribed date, and in such a case, it shall not be

B. The case holding that, in light of the fact that the collective agreement provides that the automatic retirement shall be deemed to have been automatically retired if the person to be reinstated fails to submit a reinstatement even if the grounds for temporary retirement have ceased to exist within the prescribed period after the expiration of the period of temporary retirement or that the grounds for temporary retirement have not been resolved, and that the purpose of the collective agreement is to conclude the employment relationship by deeming that there is a temporary retirement disposition against the worker on the date stipulated in the collective agreement without any separate disposition of the employer in case where the grounds for automatic retirement occurred, and that in this case, it cannot be deemed that a separate disposition by the employer is necessary for the termination

(c) The case holding that the above ipso facto retirement is effective from the expiration date of the period of temporary retirement, on the grounds that there are justifiable grounds under Article 27 (1) of the Labor Standards Act, in light of all the circumstances such as the contents and degree of the reason for temporary retirement, the possibility of prompt resolution of the reason, the impact of the company's loss or damage due to the extension of the period of temporary retirement due to the expiration of the period of the application for the extension of the period of temporary retirement stipulated in the collective agreement, and the above ipso facto retirement is recognized as effective.

D. A lawsuit seeking confirmation is permitted to eliminate risks or apprehensions with respect to current rights and legal status. A lawsuit seeking confirmation of dismissal is also valid to recover the original status based on a labor contract or to eliminate existing risks or apprehensions with respect to the current rights and legal status arising from dismissal. Thus, if a ground for seeking confirmation of dismissal, which is merely a previous legal act, is to simply restore social reputation, it shall not be deemed to have been aimed at removing risks or apprehensions with respect to existing rights and legal status, and even if it is intended to eliminate risks or apprehensions with respect to which the opportunity for re-employment is limited, it shall not be deemed as a de facto disadvantage, and thus, it shall not be deemed as having any existing risks or apprehensions with respect to rights and legal status, unless there are special circumstances, such as the limitation of the opportunity for re-employment, etc., provided in statutes, etc.

E. The case holding that there is no benefit in confirmation on the ground that the status of an employee was unable to be restored as long as the employee lost his status as an employee at the time of the conclusion of the oral argument in the original instance, as long as he lost his status as an employee due to the constructive retirement disposition, such as Paragraph (b), although the employee sought confirmation of invalidity of the dismissal disposition and sought wages during the period in which he could have provided his labor, it appears that the lawsuit for confirmation of invalidity of dismissal is aimed at restoring the status of an employment contract

(a)(c)Article 27(1)(d) of the Labor Standards Act; Article 228 of the Civil Procedure Act;

D. Supreme Court Decision 87Nu944 delivered on May 24, 198 (Gong1988,100) (Gong198,100) 92Da20149 delivered on January 15, 1993 (Gong1993Sang,69) 94Da4332 delivered on April 7, 1995 (dong) 78Da1606 delivered on September 30, 1980 (Gong1984,1266)

[Defendant-Appellant] Plaintiff 1 and 2 others

[Defendant-Appellant] Korea National University Law Office (Attorney Park Dong-dong, Counsel for defendant-appellant-appellant)

Busan High Court Decision 93Na395 delivered on November 26, 1993

The part of the judgment below against the defendant shall be reversed, and the judgment of the first instance as to this part shall be revoked.

The plaintiff's action to confirm the invalidity of dismissal is dismissed.

The plaintiff's appeal is dismissed.

The costs of lawsuit shall be borne by the plaintiff through the preceding instance.

1. First, we examine the Plaintiff’s ground of appeal (if the supplemental appellate brief was not timely filed, to the extent of supplement in case of the supplemental appellate brief).

With respect to No. 1:

A. Even if the rules of employment stipulate the occurrence of a certain reason as the reason for ipso facto retirement and the procedure differs from the ordinary dismissal or disciplinary dismissal, if an employer unilaterally terminates the employment relationship regardless of the worker's will, the employer's ipso facto retirement measures are deemed to be dismissal due to its nature. Therefore, in order for a ipso facto retirement measures to be valid, there must be justifiable reasons under Article 27 (1) of the Labor Standards Act (see Supreme Court Decision 92Da54210, Oct. 26, 1993).

However, if a labor-management considers that there is a reasonable ground to treat a certain reason differently from that of other disciplinary dismissal grounds applied to the workplace in question according to the genuine agreement of the labor-management, and if such reason occurs, the occurrence of such cause is the sole cause or the occurrence of the cause is terminated as a matter of course at the fixed date, or the worker retires, such ipso facto retirement rules shall be deemed to have the purpose of deeming that there is an automatic extinguishment reason or a retirement disposition for the worker concerned on the fixed date, and in such a case, it shall not be deemed that there is a separate disposition of the employer.

B. However, according to the collective agreement of the defendant company, which had been applied at the time the cause for the instant automatic retirement occurred, Article 23(4)(c) provides that "where the cause for the instant automatic retirement ceases to exist even before the expiration of the period of temporary retirement and the submission of documents evidencing the cause for the temporary retirement was made within 10 days after the expiration of the period of temporary retirement, it shall be restored to the same position." Article 23(4)(d) provides that "where the cause for the temporary retirement has not been resolved after the expiration of the period of temporary retirement, the period may be extended within 10 days with documentary evidence (the extension of the period shall not exceed 3 months)" and Article 28(2) provides that "where a member falls under any of the following subparagraphs, he/she shall be deemed to have automatically retired after the expiration of the period of temporary retirement, he/she shall be deemed to have reached the retirement age on the date he/she reaches the retirement age on the date he/she reaches the retirement age on the date of temporary retirement," and Article 28(2).

As such, in light of the fact that the collective agreement of the defendant company states that the automatic retirement should be the date of retirement in the event that the grounds for temporary retirement have not been submitted within the prescribed period after the expiration of the period of temporary retirement or the grounds for temporary retirement have not been resolved, the automatic retirement shall be deemed to have been made in the event that such grounds have occurred, and in the case of the defendant company, the above provisions are deemed to have been stipulated in the intention to terminate the employment relationship by deeming that there has been a temporary retirement disposition for the worker on the date stipulated in the collective agreement without any separate disposition of the employer, and in this case, it cannot be deemed that a separate disposition by the employer is necessary for the termination of the employment relationship (in this case, the plaintiff's constructive retirement disposition is legitimate due to the above reasons for temporary retirement).

Article 16 of the Rules of Employment of the Defendant Company provides that “A member shall retire when he/she falls under any of the following subparagraphs. 1. 3. When he/she has submitted a retirement source and died on February 1, 200, he/she did not return to the retirement age; however, the above provision does not stipulate that a separate disposition of retirement of the Defendant Company should be necessary in cases where the above grounds for retirement under the collective agreement as mentioned above arise, and the expression “retirement” under the above provision is merely a habit of the reasons for retirement under the collective agreement as mentioned above, and the above provision does not conflict with the above legal principles.

Therefore, the court below's conclusion that the plaintiff's labor contract relationship with the defendant company was terminated without a separate disposition due to the occurrence of a separate reason for automatic retirement is somewhat insufficient. Therefore, there is no reason to challenge any other opinion.

With respect to the second ground:

A. As seen above, the collective agreement of the defendant company provides that the period of leave may be extended within three months in the case where the reason for the extension of the period of leave has not been resolved within the fixed period after the expiration of the period of leave, unlike the case where the reason for the extension of the period of leave has been resolved and the defendant company submitted the restoration to the original state (in this case, the company must restore to the original state). Accordingly, the issue of the extension shall be at the discretion of the company. In other words, the company can decide whether to extend the period in accordance with its own discretion by comprehensively and specifically judging all the circumstances, such as the contents and degree of the reason for the extension, the possibility of prompt resolution of the reason, the possibility of the extension of the period of leave, the impact of the company or the extension of the period

B. In the instant case, the Plaintiff did not submit the restoration or extension of the period of temporary retirement for the first three months after the expiration of the period of temporary retirement, and the Plaintiff was detained on May 12, 1990 and was prosecuted for violation of the National Security Act, etc., and the reason for temporary retirement was not substantially terminated since the reason for temporary retirement was finalized at the time of waiver of the right to appeal after being sentenced to imprisonment for one year from the Mapo District Court on October 31, 1990. Thus, even if the Plaintiff submitted the restoration within 10 days from October 31, 1990, which is the expiration date of the period of temporary retirement as recognized by the lower court, the submission of the restoration to the Plaintiff cannot be said to be invalid. Even if the application for extension of temporary retirement was filed within the prescribed period, the Defendant company cannot be deemed to have extended the period of temporary retirement in light of the contents and degree of the reason for temporary retirement, the actual basis of the temporary retirement, the fact that there was no possibility to resolve the detention within the prompt period, and the effect of the company suffered or the extension.

C. Ultimately, in light of the fact that the grounds for temporary retirement have not been actually resolved even after the expiration of the period of temporary retirement against the plaintiff and that there was no possibility of extending the period of temporary retirement, regardless of whether the plaintiff submitted a reinstatement or applied for an extension of the period of temporary retirement under the collective agreement, it shall be deemed that the retirement disposition against the plaintiff was taken on October 31, 1990, which is the expiration date of the period of temporary retirement under the provisions of the collective agreement, by the occurrence of the automatic retirement ground as recognized by the court below, regardless of whether the plaintiff submitted a reinstatement or applied for an extension of the period of temporary retirement under the collective agreement. In light of the above overall circumstances, such temporary retirement ground seems to have a justifiable reason under Article 27(

D. Therefore, even if the defendant company had already been subject to disciplinary action against the plaintiff prior to the expiration date of the period of temporary retirement, the defendant's assertion of automatic retirement under the collective agreement cannot be deemed to violate the good faith principle, and the issue of whether the defendant could expect the plaintiff to submit the application within the prescribed period of time does not affect the determination that the automatic retirement disposition against the plaintiff was effective, and there is no reason to discuss that the defendant's assertion of automatic retirement is not related to the legal principles of bilateral contract such as the theory of lawsuit.

2. We examine the grounds of appeal by the defendant's attorney.

With respect to No. 1:

A. Even if the dismissal disposition against the plaintiff on September 10, 1990 of this case is null and void, the period of the application for extension of the period of the temporary retirement after the expiration of the period of the temporary retirement as stipulated in the collective agreement against the plaintiff, as seen above, lost the status of the worker by automatically retired.

B. A lawsuit seeking confirmation is permitted to eliminate risks or apprehensions with respect to the current rights and legal status, and the lawsuit seeking confirmation of dismissal also has the interest in confirmation only where it is valid and appropriate means for dismissal, which is merely a previous legal act, to restore the original status based on a labor contract or to eliminate existing risks or apprehensions with respect to the current rights and legal status due to dismissal (see Supreme Court Decision 92Da20149, Jan. 15, 1993).

C. However, the court below rejected the defendant's defense that "general effect on the principal of disciplinary dismissal is not merely a mere loss of present workplace or wage income, but also a serious result that may cause damage to social reputation and the opportunity for reemployment, and thus, even if the plaintiff automatically retired and no longer is possible to recover his status as an employee of the defendant company, it cannot be said that there is no risk or apprehension in other rights or legal status of the plaintiff, and in light of the dispute resolution and preventive function of the lawsuit seeking confirmation, it would be an effective and appropriate means to obtain a judgment seeking nullification of dismissal in order to eliminate such risk or apprehensions in light of the dispute resolution and preventive function of the defendant company." Thus, the court below rejected the defendant's defense that the plaintiff lost his status as an employee of the defendant company

However, if the reason for seeking a confirmation lawsuit against dismissal, which is merely a previous juristic act, is simply to recover damage to social reputation, it cannot be deemed to aim at eliminating the risk or apprehension of existing rights or legal status. Even if it is intended to eliminate the risk of restricting the opportunity for re-employment, barring special circumstances, such as the limitation on the opportunity for re-employment cannot be deemed as a de facto disadvantage or legal disadvantage (see Supreme Court Decision 87Nu944 delivered on May 24, 198), and it cannot be deemed that there is any danger or apprehension in existing rights or legal status.

D. In the case of this case, the plaintiff sought the confirmation of invalidity of the dismissal disposition of this case and sought wages during the period in which he could have provided labor. Thus, the lawsuit for confirmation of invalidity of dismissal of this case seems to be aimed at restoring the status under an employment contract between the plaintiff and the defendant company. As long as the plaintiff lost the status of the defendant company as an employee of the defendant company at the time of the conclusion of oral argument of the court below, it is impossible to recover such status. Thus, the lawsuit for confirmation of invalidity of dismissal of this case on this ground

Nevertheless, the court below rejected the defendant's defense of this safety based on its stated reasoning. The court below erred in the misapprehension of legal principles as to the interest in confirmation in a lawsuit seeking nullification of dismissal, and it is obvious that this affected the judgment, and there is a reason to point this out.

3. Conclusion

Ultimately, Defendant 1’s ground of appeal is with merit, and without examining the remaining grounds of appeal, reversed part of the judgment of the court below against the Defendant, and the decision of the court of first instance which accepted the lawsuit of the above reversal portion is revoked, and this part of the lawsuit by the Plaintiff is dismissed as there is no interest in confirmation as seen above. The Plaintiff’s ground of appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench, on the ground that the lawsuit cost is assessed against the Plaintiff who lost through a previous trial.

Justices Lee Jae-soo (Presiding Justice)