[1] Relationship between the procedure for the dismissal of a member under the rules of employment and the Article 660 of the Civil Code

[2] Whether there is a benefit in a lawsuit against an employee whose employment relationship was terminated due to the submission of a private employee during the dispute over the validity of dismissal has been brought to the National Labor Relations Commission to dispute the review decision (negative)

[1] In a case where a worker prepares a written resignation and submits it to the employer, barring any special circumstance, such resignation includes an expression of intent to terminate the labor contract relationship with the employer. Thus, the labor contract relationship between the parties is terminated upon the employer's acceptance of his/her intention of resignation and the termination upon the submission of the written resignation or upon the lapse of a certain period under Article 660 of the Civil Code. However, Article 660 of the Civil Code provides otherwise with regard to the period and procedure as well as with the rules that guarantee the freedom of termination of the worker, unless it is unfavorable to the worker. Thus, when a worker retires, the worker is required to obtain the approval of the employer within a certain period of time, but if the worker fails to obtain the approval even though the employer had no reasonable reason to refuse such approval, the labor relationship is terminated upon the lapse of the period as prescribed in the above Article 660 of the Civil Code (if the employment rules provide for a shorter period, such a period).

[2] In case where a new decision was made to revoke a remedy order issued by the Regional Labor Relations Commission under the circumstances that the employer had not accepted it within 14 days from the date when the employee was submitted to the National Labor Relations Commission even though the employee, who received a remedy order from the Regional Labor Relations Commission, submitted his/her resignation before the new decision was made by the National Labor Relations Commission after his/her reinstatement, the employee lost his/her status as an employee on that date by the submission of the employee at the expiration of 14 days from the date when the employee was submitted to the National Labor Relations Commission. If the labor contract relationship between the employee and the employer is terminated, even if it is necessary to exempt the employee from the obligation to return the wages during the period of dismissal which he/she had already received, or it is beneficial to add the period of dismissal during the period of service, such profit can be resolved through civil procedure, so there is no interest in legal action to dispute the new decision by the National Labor Relations Commission

[1] Article 27 (1) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996), Article 94 (see Article 96 of the current Labor Standards Act), Article 39 subparagraph 1 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) (see Article 81 subparagraph 1 of the current Labor Union and Labor Relations Adjustment Act), Article 60 of the Civil Act / [2] Article 27 (1) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) (see Article 30 (1) of the current Labor Standards Act), Article 39 subparagraph 1 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 196), Article 12 of the Administrative Litigation Act (see Article 12 subparagraph 1 of the current Labor Union and Labor Relations Adjustment Act)

[1] Supreme Court Decision 95Nu7765 delivered on July 30, 1996 (Gong1996Ha, 2684)

Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Industrial Design Medal Development Institute (Attorney Lee Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 95Gu452 delivered on February 13, 1996

The judgment of the court below is reversed. All costs of the lawsuit are assessed against the plaintiff.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, on September 1, 1994, the plaintiff was dismissed from office by evidence, and the defendant was ordered by the above Regional Labor Relations Commission on October 27 of the same year to remedy the plaintiff's return to his original position and wages during the period of his dismissal, and the intervenor returned the plaintiff to his original position on November 8 of the same year and paid wages during the period of his dismissal. The plaintiff did not submit the resignation staff to the plaintiff on September 16 of the same year, but did not work thereafter, the plaintiff continued to demand the return of retirement allowances paid to the plaintiff on September 16 of the same year without the resignation of the intervenor, and the National Labor Relations Commission revoked the order for remedy by the above Regional Labor Relations Commission on December 23 of the same year, and the plaintiff's remaining in his employment order after the plaintiff's withdrawal of the above Local Labor Relations Commission's dismissal order and the plaintiff's remaining in his employment order after the plaintiff's rejection of the plaintiff's remaining in his employment order after 60 days of the plaintiff's dismissal procedure.

2. In a case where a worker prepares a written resignation and submits it to the employer, barring any special circumstance, the said written resignation includes an expression of intent to terminate the labor contract relationship with the employer. Thus, the labor contract relationship between the parties concerned is terminated upon the employer's acceptance of his/her intention of resignation and the termination upon the submission of the written resignation or upon the lapse of a certain period under Article 660 of the Civil Act (Supreme Court Decision 95Nu7765 delivered on July 30, 1996). However, Article 660 of the Civil Act provides otherwise with regard to the period or procedure, unless it is unfavorable to the worker as a provision guaranteeing the freedom of termination of the worker's resignation and unless it is unfavorable to the worker. Thus, when a worker retires, if the worker submits the written resignation within a certain period, but the employer does not approve even if there is no reasonable reason to refuse the approval, the labor relation is terminated upon the lapse of the period under the above provision of the Act (if the period is shorter than this, the period).

3. He returned to the instant case, even though the Plaintiff submitted resignation on November 11, 1994, if the Intervenor did not accept it within 14 days of the stipulated rules of employment, the termination by the submission of private staff as of November 26, 1994 after the expiration of 14 days from the date of the submission of the employee, and thus, the Plaintiff lost his status as an employee of the Intervenor on that date. Nevertheless, the lower court erred in determining that the employment relationship existed between the Plaintiff and the Intervenor on December 8, 1995 under the premise that the Intervenor’s employment relationship continues by failing to accept the Plaintiff’s resignation.

Furthermore, if the labor contract relationship between the intervenor and the plaintiff is terminated as above, even if it is necessary for the plaintiff to be exempted from the obligation to return the wages during the period of dismissal already received, or even if there is a practical benefit to add the period of dismissal to the period of service when calculating the retirement allowance, such benefit can be resolved through civil procedure, as it is not only a de facto benefit but also can be resolved through civil procedure. Therefore, there is no interest in litigation to dispute over the review decision of the National Labor Relations Commission

Therefore, the court below erred by misapprehending the meaning of Article 660 of the Civil Code and the legal principles as to the interest in the lawsuit, since the court below judged that the interest in the lawsuit in this case exists and accepted the plaintiff's claim.

4. Thus, the lawsuit of this case is not proper as there is no benefit of lawsuit, and the judgment of the court below is reversed as it is not possible to maintain the remaining grounds of appeal without determining the remaining grounds of appeal, and this court decides to dismiss the lawsuit of this case, and the total costs of the lawsuit are to be borne by the losing party and are so decided as per Disposition by the assent of all participating Justices

Justices Lee Im-soo (Presiding Justice)