(영문) 춘천지방법원 원주지원 2017.6.22.선고 2016가합5739 판결

A. The amount of 6% per annum from December 6, 2016 to June 22, 2017; and 15% per annum from June 22, 2017 to Plaintiff A; and the amount of 6% per annum from June 6, 2016 to June 22, 2017 to Plaintiff C. The amount of 212,974,356 won and the amount of 6% per annum from December 6, 2016 to June 22, 2017 to the day of full payment; the amount of 15% per annum from Plaintiff D until the day of full payment; and the amount of 117,246,382, and 15% per annum from June 21, 201 to June 22, 2017 to the day of full payment; and

3. All of the plaintiffs' remaining claims are dismissed.

4. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff B and the Defendant are borne by the Plaintiff B, and the remainder by the Defendant, and 1/5 of the part arising between the Plaintiff A, D and the Defendant are borne by the Plaintiff A, D, and the remainder by the Defendant respectively. 1/10 of the part arising between the Plaintiff C and the Defendant is borne by the Plaintiff C and the remainder by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff B 1,605,681 won per month until he/she is reinstated from November 201, 201, and shall pay to the plaintiff A 176, 785, 735 won, 216, 394, 210 won per annum to the plaintiff C 15% per annum from December 6, 2016 to the day of complete payment. The defendant shall pay to the plaintiff 20, 212, 521 won and the amount calculated at the rate of 15% per annum to the plaintiff 15% per annum to the plaintiff 2, 206, 300 won per annum to the plaintiff 1, 206, 300 won per annum to the plaintiff 1, 206, 30% per annum to the plaintiff 2, 160, 196, 16.

Reasons

1. Basic facts

A. Status of the Parties

The defendant is a company that runs the manufacturing and selling business of electricity, electronic parts, and materials, and the plaintiffs are workers who worked for the defendant.

B. Implementation of honorary retirement for the plaintiffs

1) Around November 2011, the Defendant directed the Defendant to implement the honorary retirement, and the Plaintiffs submitted to the Defendant a letter of facilitate filing of a written application for pre-employment, a resignation, and a civil or criminal objection against the Defendant.

2) The Defendant selected the Plaintiffs as persons eligible for voluntary retirement, and notified the Plaintiffs that they accepted the letter of resignation as of November 28, 201 (hereinafter “instant voluntary retirement”) on November 201.

C. The plaintiffs' request for remedy and the process of administrative litigation

1) On February 22, 2012, the Plaintiffs asserted that the instant voluntary retirement constituted unfair dismissal and filed an application for remedy with the Gangwon Regional Labor Relations Commission. However, the Gangwon Regional Labor Relations Commission dismissed the application on May 10, 2012. The Plaintiffs dissatisfied therewith filed an application for reexamination with the National Labor Relations Commission on May 30, 2012, and the National Labor Relations Commission accepted the written resignation submitted by the Plaintiffs even though the Defendant was aware of such circumstances. Accordingly, the instant voluntary retirement was received by the Plaintiffs on the ground that “the instant voluntary retirement was in the form of voluntary dismissal from office, and constitutes an unfair dismissal from office,” and that it constitutes “the instant decision on retrial” was rendered by the National Labor Relations Commission on November 12, 2012.

2) Accordingly, the Defendant filed an administrative suit seeking the revocation of the instant decision on reexamination under the Seoul Administrative Court 2012Guhap43864, but the Seoul Administrative Court rendered a judgment dismissing the Defendant’s claim on the ground that the expression of intent to resign by submitting the application for voluntary retirement and the letter of resignation on February 13, 2014 is null and void as a bad will, and that the Defendant’s acceptance of the Plaintiffs’ application for voluntary retirement and the letter of resignation constitutes dismissal made by the Defendant’s unilateral intention, and that the Defendant’s termination of a labor contract relationship with the Plaintiffs constitutes dismissal made by the Defendant’s unilateral intention (hereinafter “instant judgment”), and the instant judgment became final and conclusive as it was all dismissed (see Supreme Court Decision 2014Nu3077, Supreme Court Decision 2015Du2185).

D. The agreement between the defendant and the plaintiff B and the defendant and the payment of the defendant's agreed amount

1) As the instant judgment became final and conclusive, Plaintiff B prepared and delivered to F on March 23, 2016 a letter of delegation with the purport of “FC to delegate all matters regarding the instant lawsuit and agreement with the Defendant.” On June 3, 2016, the F, who was delegated the authority to agree with the Defendant’s employees, including Plaintiff B, regarding the instant voluntary retirement, agreed with the Defendant on June 3, 2016 (hereinafter “instant agreement”).

A person shall be appointed.

2) Pursuant to Paragraph 2 of the instant agreement, the Defendant paid F KRW 150,00,000 to F.

E. The defendant's order to reinstate the plaintiff A, C, and D

On November 30, 2016, when the instant lawsuit was pending, the Defendant ordered that Plaintiff A and C be reinstated to their original position until December 5, 2016, and on December 12, 2016, Plaintiff D be reinstated to their original position until December 12, 2016. Plaintiff A, C, and D did not work until the date on which the instant argument is closed.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 to 3, Eul evidence 6, Eul evidence 1 and 3 (which include each number; hereinafter the same shall apply), the witness F's testimony, and the purport of the whole pleadings

2. Determination

A. As to the plaintiffs' request for nullification of dismissal

1) Facts of recognition

A) Upon the aggravation of management status, the Defendant conducted education and training for 65 employees belonging to the Defendant and conducted temporary suspension of business on three occasions from April 21, 201 to April 29, 2011 in consultation with the Defendant’s trade union (hereinafter “trade union”).

B) On July 13, 2011, the Defendant and the Trade Union concluded a collective agreement on wages and collective agreements in 2011 with the following content:

A person shall be appointed.

C) As to the implementation of honorary retirement on November 14, 201, the Defendant and a trade union agreed to:

A person shall be appointed.

D) From November 18, 201 to November 24, 2011, the Defendant held an interview with respect to voluntary retirement for 156 production workers among 228 employees of the Defendant (including 4 employees, 2 advisers, 2 members of the labor union and the secretary general, 5 members of cafeteria, 14 employees of cafeteria, and 14 employees of the guard).

E) G Standing director, H head of H, and I head of I conducted an interview with respect to voluntary retirement. Before holding an interview, G told that the Defendant’s management difficulties and personnel reduction need was made to the production position manager, and urged the employees to submit a written application for voluntary retirement and a written resignation from the workers. Accordingly, the production position manager recommended the employees under his/her control to explain the Defendant’s situation and submit a written application for voluntary retirement and a written resignation.

F) An interview with respect to the voluntary retirement was conducted by an individual. At the time of the interview, the Defendant printed out the application form for voluntary retirement and the date and time of the applicant’s personal information and the written resignation in the place of the interview, and printed out the written resignation and the written resignation. G, at the time of the interview, recommended the person subject to the interview to undergo the interview to undergo the interview by referring to the Defendant’s business difficulties and necessity for the reduction of the number of employees, and if the interview did not submit the application form for voluntary retirement and the written resignation, she would be entitled to receive the voluntary retirement benefits without receiving the written resignation. In addition, some of the persons subject to the interview asked G and H whether other persons have submitted the written application for voluntary retirement and the written resignation. G and H provided that most other persons submitted the written application for voluntary retirement and the written resignation, and H expressed that they also carried the written application for voluntary retirement and written resignation.

G) From among the employees belonging to the Defendant, 214 persons, including 228 employees, including 228 employees, 209 employees, among the employees belonging to the Defendant, including the Defendant’s voluntary retirement secretary, resignation, and civil and criminal complaints against the Defendant, who were prepared by the Defendant in the same form.

H) On December 9, 2011, the Defendant paid a retirement allowance, annual allowance, etc. to 79 persons who voluntarily retired on December 9, 2011.

I) The Defendant again paid work allowances, vehicle subsidies, mobile phone subsidies, school expenses, and dormitory management expenses, which were temporarily suspended pursuant to the collective agreement set out in the above paragraph (b) from February 2012. In addition, after the voluntary retirement of the instant case, the Defendant registered job offer advertisements with the content that two overseas workers are employed in miscellaneous Korea, which is the Internet site (www. joint and several kdorea.co. kr) and made an employment advertisement with the content that the Defendant would employ two overseas workers on six occasions from January 17, 2012 to June 1, 2012.

2) Relevant legal principles

Even if an employer has received a written resignation from an employee and completed an employment contract by taking the form of dismissal from a member who accepts it, in cases where the employer forced an employee who has no intention to resign to prepare and submit a written resignation without any choice but to do so, it constitutes dismissal as it actually terminates the employment contract relationship by virtue of the employer’s unilateral intent (see, e.g., Supreme Court Decisions 2001Du1076, Jun. 14, 2002; 200Da51919, 51926, Jan. 19, 200).

On the other hand, the expression of intention in the expression of intention in the expression of intention does not mean that the speaker refers to the expression of intention in a genuine mind (see Supreme Court Decision 2000Da47361, Dec. 27, 2002). In the case where the senior citizens submit a written resignation as a whole, there was no internal intent to deliberate on the termination of the labor contract relationship when they submit a written resignation, and the employer also accepted a written resignation with the knowledge of such circumstance, the expression of intention in the employee’s resignation is null and void (see Supreme Court Decision 92Da21036, Aug. 14, 1992). In addition, even if an employee is aware of his intention in a written resignation at the time of preparation of the written resignation in accordance with the employer’s instruction and submission of the written resignation, it cannot be said that the employee’s expression of intention in a written resignation is determined by the first instance court’s decision (see Supreme Court Decision 90Da154, Sept. 15, 1992).

3) Nullity of the voluntary retirement of this case

In light of the aforementioned facts, and the following circumstances recognized by the purport of the entire arguments and evidence as seen earlier, it is reasonable to view that the instant voluntary retirement was determined by the employees, including the Plaintiffs, by filing a collective application for voluntary retirement at the request of the Defendant without a genuine intention of resignation and by unilaterally setting the Defendant, and that the Defendant was aware of such intent of the Plaintiffs. Therefore, even if the Plaintiffs submitted to the Defendant a written application for voluntary retirement and a written resignation to the Defendant and expressed his/her intent of resignation, it is null and void as an expression of intention under the Civil Act. The Defendant’s acceptance of the Plaintiffs’ written application for voluntary retirement and the written resignation to terminate an employment contract by the Defendant constitutes a dismissal made by the Defendant’s unilateral intent, and thus, is null and void.

A) In the process of the instant voluntary retirement, the Defendant seems to have demanded the submission of a written application for voluntary retirement and a written resignation en bloc when suggesting that its employees, including the Plaintiffs, may suffer disadvantage without submitting a written application for voluntary retirement and a written resignation.

B) In light of the fact that, from February 2012 to July 13, 2011, the Defendant paid work allowances, vehicle subsidies, mobile phone subsidies, school expenses, and dormitory management expenses, which were temporarily suspended pursuant to a collective agreement, again. After the instant voluntary retirement, the Defendant was seeking to employ overseas workers and production workers. Although the Defendant’s management status has deteriorated, the Defendant’s management status was not deteriorated to the extent that wages are not not paid to employees, and the Defendant was not actually unable to pay wages to employees at the time of the instant voluntary retirement, and it does not seem that the Defendant’s management status significantly deteriorated as much as the Defendant would have to retire employees, including the Plaintiffs, at the time of the instant voluntary retirement.

C) In light of the fact that the ratio of workers who applied for voluntary retirement reaches 6% on 97.6% ( = 209/214 x 100% on 20% on 10% on 3% on 197. The fact that workers receive voluntary retirement even if they do so, is merely wages of a maximum of 3 months on 3-month amount, most of the workers who have submitted the application for voluntary retirement and the written resignation, were most of their dependents, and there is no other workplace where workers are able to resign, and if 209 persons including the plaintiffs, including the plaintiffs, retired from office, the Defendant’s operation itself is deemed impossible, it is difficult to deem that the workers including the Plaintiff, who have submitted the application for voluntary retirement and the written resignation, intended to retire or resign.

D) At the time of the meeting for the voluntary retirement of this case, most workers including the plaintiffs expressed their intent to comply with the company's decision while submitting the written application for the voluntary retirement at the same time of the meeting. The J reserved 209 workers including the plaintiffs, including the plaintiffs, without directly deciding whether or not they will be a member of the company, because they are the same conditions as the former employees. In addition, the defendant tried to hold an individual interview about 100 persons to be recruited for the production workers in excess of the scheduled number of 156 persons, and received an application for the voluntary retirement and a written resignation by selecting 79 persons among them. In light of the circumstances of the above voluntary retirement of this case, the worker applied for the voluntary retirement of this case to the defendant, and the defendant applied for the voluntary shipment of this case based on the premise that the defendant is to be a member of the voluntary retirement.

It is more reasonable to view that some workers have been dismissed on a selective basis after submitting a written resignation report en bloc from all workers.

B. As to the plaintiff A, C, and D's claim for payment of wages

1) The defendant's obligation to pay wages arises.

When an employer’s unfair dismissal disposition becomes null and void, the status of the dismissed person as an employee shall continue, and since the failure to provide labor during that period is caused by the cause attributable to the employer, the former person may request the employer to pay the entire amount of wages that may be received in cases where the employer continues to work during that period pursuant to the main sentence of Article 538(1) of the Civil Act (see Supreme Court Decision 2011Da20034, Feb. 9, 2012, etc.).

As seen earlier, insofar as the instant voluntary retirement is null and void as such, the Defendant is obligated to pay the amount equivalent to the wages that the said Plaintiffs could have been paid to Plaintiff A, C, and D for the period from November 28, 201 following the date of the instant voluntary retirement to November 28, 201, namely, the day before the date of reinstatement under the name of reinstatement for the said Plaintiffs, namely, Plaintiff A, and C, until December 11, 2016, in the case of Plaintiff D, until December 11, 2016.

2) Scope of the Defendant’s obligation to pay wages

A) Furthermore, we examine the amount of wages that the Defendant is obligated to pay to the Plaintiffs.

The monthly average wage of Plaintiff A before the instant disposition of dismissal was KRW 4,128,90, the monthly average wage of Plaintiff C was KRW 3,537,780, and the monthly average wage of Plaintiff D was KRW 3,494,94, and 940. The above Plaintiffs did not dispute the fact that the monthly average wage of Plaintiff C was not paid since November 28, 201. Unless there are special circumstances, the Defendant paid the wages calculated at the rate of KRW 4,128,90 per month to Plaintiff C from November 28, 201 to December 4, 2016, the amount of wages was calculated at the rate of KRW 10,00 per month to KRW 3,537,780, and the monthly average wage of Plaintiff D from November 28, 201 to December 14, 2011 to Plaintiff C; and the amount was calculated at the rate of KRW 13,58,14,201.

B) Determination on the Defendant’s recommendation for interim income deduction

(1) The defendant asserts that the intermediate income earned by plaintiffs A, C, and D from their work in another place of business during the period of dismissal should be deducted.

(2) In light of the above, income earned by a worker who has been employed in another workplace during the period of his/her dismissal is a profit derived from the discharge of his/her duty to provide labor. As such, when an employer pays wages during the period of his/her dismissal to a worker, he/she may deduct such profit (the so-called interim income). However, Article 46(1) of the Labor Standards Act provides that in cases where a worker suspends his/her business due to a cause attributable to the employer, the employer shall pay not less than 70 percent of his/her average wages during the period of suspension, unless the amount equivalent to not less than 70 percent of his/her average wages exceeds his/her ordinary wages, he/she may pay his/her ordinary wages as a shutdown allowance, and this provision includes cases where a worker cannot provide his/her labor against his/her will even though he/she wishes to provide his/her own labor according to a labor contract, and where the Labor Standards Act applies to his/her dismissal due to a cause attributable to the employer, he/she shall not be subject to interim allowances within the scope of 19.

(3) In the case of Plaintiff C, it is not sufficient to acknowledge the fact that Plaintiff C had earned income by engaging in another workplace during the period of dismissal, with only the statement of Plaintiff C’s evidence No. 9, and there is no other evidence to determine the person. Therefore, this part of the Defendant’s assertion on a different premise is without merit.

(4) Next, according to the overall purport of Plaintiff A and D’s reply to the fact-finding to K, and the statements and arguments set forth in Plaintiff A’s evidence Nos. 6 through 9, during the dismissal period, Plaintiff A received approximately KRW 3,500,000 monthly remuneration from March 2012 to July 31, 2015, and from August 20, 2015 to May 12, 2016, which is the day immediately preceding the date of reinstatement under the reinstatement order, the Defendant received approximately 3,500,000 won monthly remuneration from Korea during the period from March 201 to February 2013, 2013 to March 13, 201, respectively, and Plaintiff D received from Korea during the period from April 20 to February 14, 2015 to February 13, 201, respectively.

Furthermore, according to the purport of Gap evidence 2 and the oral argument, since the defendant's basic salary, continuous work allowance, working environment allowance, welfare allowance and duty allowance of 00 won x 70 won periodically, uniformly, as consideration for the above plaintiffs' work, it shall be deemed that the basic salary and above allowances belong to ordinary wage of 1, 371, 070 won, continuous work allowance of 70 won, working environment allowance of 00 won, 30 won, 40 won and welfare allowance of 0, 60 won and 40 won, 60 won and 70 won, 60 won and 40 won, 60 won and 40 won, 60 won and 70 won, 60 won and 40 won, 60 won and 40 won, 60 won and 70 won, 00 won and 40 won, respectively.

Therefore, it is apparent that Plaintiff A is not in the ordinary wage for this month, from March 2012 to July 31, 2015, and from August 20, 2015 to December 4, 2016, Plaintiff D is liable to pay only the monthly amount of income earned by deducting the monthly amount of income earned by Plaintiff D from his average wage to December 11, 2016, respectively, during the period from April 15, 2015 to December 2016. Plaintiff D is not in the ordinary wage for a period from April 2012 to December 2014. Accordingly, Plaintiff D is liable to pay only the monthly amount of income to Plaintiff A and D for the aforementioned period.

When calculating this, wages for the above period to be paid by the defendant shall be 67, 192, and 246 won in the case of Won Go high, = 1,51, and 070 won in = (44 months + 14 days + 30 days + March 1, 2012) to July 31, 2015; and from August 20, 2015 to December 4, 2016; 196, 28, 392 won in the case of Plaintiff Go (from February 1, 856, and 460 won in the case of = 51 + 26 days to February 1, 201 to February 1, 201).

3) Sub-decisions

(1) The defendant: (1) 12, 65, 198 won = 20 from March 2012 to July 31, 2015 ; (2) 10, 246 won per annum for the period from August 20 to December 4, 2016 ; and (3) 10% per annum for the remaining period from 6.4th day to 6th day of December 2011 ; and (4) 20% per annum for the plaintiff 1 to 6th day of December 16th day after 200; and (5) 20% per annum for the remaining period from 6th day to 6th day of December 4, 2016 excluding the above period.

Until June 22, 2017, which is the date of this decision, the court is obligated to pay 6% per annum under the Commercial Act, and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment, respectively.

C. As to the plaintiff B's claim for payment of wages

As long as the voluntary retirement of this case is null and void, the Defendant had a duty to pay the amount equivalent to the wages which the Plaintiff could have been paid if the Plaintiff B had worked normally during the period of dismissal, barring special circumstances. However, it is reasonable to deem that the Plaintiff B renounced the right to additional wage claim against the Defendant, as seen earlier, on June 3, 2016, upon the delegation of the Plaintiff B by the Plaintiff B. However, the Plaintiff B was reinstated to the Defendant in accordance with the instant judgment, but voluntarily resigned from the Defendant upon receipt of retirement consolation money, and voluntarily retired from the Defendant, and recognized that the Defendant was paid all the amounts that could have been received from the Defendant due to the disputes in resignation and training, including the aforementioned retirement consolation money.

이에 대하여 원고 B은 F에 대한 이 사건 명예퇴직과 관련된 합의권한 위임을 철회하였으므로 이 사건 합의의 효력이 미치지 아니한다고 주장한다 . 그러나 증인 F는 원고 B으로부터 이 사건 명예퇴직과 관련된 합의 권한을 위임받은 이후에도 원고 B과 틈틈이 합의의 진행 상황 및 내용에 관한 협의를 하면서 이 사건 합의를 하였고 , 이 사건 합의 이전에 원고 B으로부터 권한 위임을 철회한다는 얘기를 들은 적이 없다고 증언한 점에 비추어 볼 때 , 갑 제10호증의 기재만으로는 원고 B이 이 사건 합의 이전 에 F에게 합의에 관한 권한 위임을 철회한다는 의사를 표시하였다는 사실을 인정하기 에 부족하고 달리 이를 인정할 증거가 없다 .

Accordingly, the plaintiff B's claim for the payment of wages on a different premise is accepted.

subsection (b) of this section.

3. Conclusion

Therefore, the plaintiffs' claims of this case are reasonable within the scope of each of the above recognition, and they are accepted, and each of the remaining claims of the plaintiffs is dismissed. It is so decided as per Disposition.