[1] Whether it constitutes dismissal in a case where an employee who has no intention to resign inevitably prepares and submits a written resignation and terminate an employment contract (affirmative)

[2] The case where filing a lawsuit seeking confirmation of invalidity of a dismissal after receiving a retirement allowance without an explicit objection to the dismissal does not go against the principle of good faith or the principle of non-competence

[1] Articles 30(1) and 31 of the Labor Standards Act / [2] Article 2 of the Civil Act, Articles 30(1) and 31 of the Labor Standards Act

[1] Supreme Court Decision 200Du4675 Decided May 14, 2002 / [2] Supreme Court Decision 93Da21736 Decided September 24, 1993 (Gong1993Ha, 2925), Supreme Court Decision 94Da45753 Decided November 21, 1995 (Gong196Sang, 40) decided March 8, 1996 (Gong196Sang, 1218)

Profit pen and 16 others (Law Firm Leesan, Attorney Lee Won-young, Counsel for the plaintiff-appellant)

KS Life Insurance Co., Ltd. (Law Firm Mapyeong, Attorneys Cho Yong-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Na53382 delivered on October 24, 2001

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. The incomplete hearing and the violation of the rules of evidence

The court below recognized the facts based on the employed evidence, and compared the relevant evidence with the records, such fact-finding by the court below is just, and it cannot be said that there was an error of misconception of the facts in the incomplete hearing or the rules of evidence. Therefore, we cannot accept the ground of appeal pointing this out.

2. As to the misapprehension of the legal principles as to the effect of the submission of resignation

In a case where an employer receives a written resignation from an employee and concludes an employment contract by taking the form of dismissal from a member who accepts it, if the employer had an employee who has no intention to resign prepare and submit a written resignation without any choice, it shall be deemed that the employment contract is terminated by the employer’s unilateral intent and thereby constitutes dismissal (see Supreme Court Decision 200Du4675, May 14, 2002, etc.).

As to the submission of the above resignation by the above plaintiffs, the court below determined that the above plaintiffs were merely a symbolic formal presentation that merely takes charge of corporate business deterioration without knowing whether to accept the resignation and the criteria for acceptance, and that the above plaintiffs would not have any intention to resign merely because they were the decision of the company's upper part, and that it was impossible for the plaintiffs to accept the resignation submitted under these circumstances and process the plaintiffs to retire after the conclusion of the labor contract relations by the employer's unilateral intention. Since the above plaintiffs Kim Young-young, transfer, Kim Young-chul, Lee Dong-dong, Lee Chang-dong, Lee Chang-hee-hee, Lee Chang-hee-hee, and Lee Chang-hee's resignation, the above plaintiffs were merely a mere formal presentation of the symbolic meaning that the above plaintiffs would be responsible for corporate business deterioration, the above plaintiffs' intention to dismiss the above plaintiffs was actually different from the above plaintiffs' retirement team' retirement team's normal decision, it was not possible for the plaintiffs to accept the resignation of the above plaintiffs' retirement team's resignation, and therefore, it was eventually impossible for the plaintiffs to submit the above retirement team's labor conditions.

In comparison with records, we affirm the judgment of the court below in light of the above legal principles, and there is no error of law by misunderstanding the legal principles as to the effect of submission of resignation. Accordingly, we cannot accept the allegation in the ground of appeal.

3. As to the misapprehension of legal principles as to the ratification of invalid acts or the good faith principle

If an employee dismissed from the employer did not withhold any objection or condition at the time of receiving retirement allowances, it shall be deemed that the dismissal was effective, barring any special circumstances. Therefore, filing a lawsuit claiming the validity of the dismissal after a long period of time has passed shall not be permitted in violation of the principle of good faith or the principle of noduition, but in such a case, it shall not be deemed that the dismissal was effective uniformly even in the case where the employee receives retirement allowances without explicitly raising an objection, even if there are objective circumstances that can be viewed as not recognizing the validity of the dismissal and there are other reasonable reasons, such as the receipt of it under the circumstances where there is no other reasonable reason (see, e.g., Supreme Court Decision 95Da51847, Mar. 8, 196).

In full view of the adopted evidence, the court below acknowledged the fact that some of the members who were at the time of the company's resignation and the company's interest rate for loans from the company would be raised at 4% per annum and 22% per annum as the employees including the plaintiffs, upon the submission of resignation documents, received the remaining retirement allowances by offsetting the loans from the company and receiving the retirement allowances, and the employees who did not receive retirement allowances did not unilaterally offset the loans and retirement allowances from the company, and remitted the remaining retirement allowances to the bank account of the employees, and then it is nothing more than a receipt of retirement allowances by considering their disadvantage. In addition, in full view of the circumstances of the plaintiffs' grounds of appeal, such as the circumstance that some of the dismissed employees including the plaintiffs raised an objection against the national life ground of appeal, such as the dismissal and the rejection of the dismissal, the court below did not err by misapprehending the legal principles as to the act of dismissal or by misapprehending the legal principles as to the act of dismissal for 9 months or 18 months after the retirement.

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Kim Yong-dam (Presiding Justice)