[1] In a case where a company's specific duties are to be entrusted to another company, but the company entrusted with such duties is to receive a transfer from the company entrusted with such duties, and the relevant worker entered the company entrusted with the receipt of retirement benefits without objection from the previous company, whether the employment relationship is terminated (affirmative)

[2] The meaning of "employee of the same kind" subject to collective agreement under Article 37 of the former Trade Union Act

[3] Whether a ground for retirement occurred in calculating the average wage of a worker (negative)

[4] In a case where the payment of the full amount of the monthly remuneration was made even if the retirement was made during the month, whether the full amount of the remuneration should be included in the average wage, which serves as the basis for the calculation of the retirement allowance

[1] In light of the fact that the legal relationship under an entrustment agreement between the original company and another company continues to be owned by the original company, and the rights and obligations related to the transfer of physical facilities are not comprehensively succeeded to the other company, it shall not be deemed that the labor relationship comprehensively succeeded to, such as transfer of business or corporate merger, and the case where part of the company was separated or independent, or there was a change in organization or transfer of business between affiliated companies. In light of the fact of transfer to another company, even though there was time to know within the original company before several months, it cannot be deemed that the original company was subject to dismissal from the original company and new appointment to another company after receiving retirement benefits from the original company without any objection, and even if the former company was appointed to the original company after receiving retirement allowances from the original company, it cannot be deemed that it was made against the original company, even if it was done in a lump sum with respect to all of the transferred physical facilities, it cannot be deemed that the original company was re-entrusted to the original company, and it cannot be deemed that the employment relationship was re-entrusted to the original company after retirement from the original company.

[2] The "worker of the same kind" who is subject to the collective agreement pursuant to Article 37 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) refers to a person who is expected to be subject to the collective agreement pursuant to the provisions of the pertinent collective agreement, so a person who is not qualified as a member of the association pursuant to the provisions of the collective agreement cannot be expected to be subject to the collective agreement, and thus, it does not

[3] In calculating the average wage, the day when a ground for retirement occurred shall not be included.

[4] In case where a person retires in the middle of a month and receives the full amount of the monthly remuneration, the fact that the full amount of the remuneration shall be included in the average wage shall apply only to the case where the full amount of the monthly remuneration can be paid even during the retirement of the month under the collective agreement or employment rules, and it shall not be included in the calculation of the full amount even in the case where the employer voluntarily paid even if he retires under the wage agreement

[1] Article 28 (1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 34 (1) of the Labor Standards Act) / [2] Article 37 of the former Trade Union Act ( repealed by Act No. 5244 of December 31, 1996) (see current Article 35 of the Labor Standards Act) / [3] Article 19 (1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 19 (1) of the Labor Standards Act), Article 157 of the Civil Act / [4] Article 19 (1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 19 (1) of the Labor Standards Act), Article 28 (1) (see current Article 34 (1) of the Labor Standards Act)

[1] Supreme Court Decision 91Da32657 delivered on December 13, 1991 (Gong1992, 510), Supreme Court Decision 93Da18938 delivered on November 18, 1994 (Gong1995Sang, 43), Supreme Court Decision 95Da4270 delivered on May 10, 1996 (Gong1996Ha, 1807), Supreme Court Decision 96Da3851 delivered on June 27, 1997 (Gong1997Ha, 2329) / [2] Supreme Court Decision 95Da39618 delivered on December 222, 195 (Gong196, 505Sang, 1995) 97Da49799 delivered on April 29, 195 (Gong196, 505)

Plaintiff (Law Firm Busan General Law Office, Attorney Jeong Jae-sung, Counsel for plaintiff-appellant)

Busan Cultural Broadcasting Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 95Na641 delivered on February 2, 1996

The plaintiff's appeal and the defendant's incidental appeal are all dismissed. The costs of appeal and the incidental appeal are assessed against each party.

1. We examine the Plaintiff’s grounds of appeal.

A. As to the first ground for appeal

In principle, the employment relationship with the previous company shall not be interrupted even though the employee has changed to another company as a legal person, and the employment relationship with the previous company shall be deemed to continue in another company.

According to the records, the plaintiff was employed on April 10, 1968 by joining the defendant company. On October 30, 1984, the defendant company entered into an agreement between the non-party company and the non-party company (hereinafter the non-party company) on the transmission and relay of broadcasting facilities (hereinafter the entrusted agreement). According to the entrustment agreement, the non-party company would be entrusted with the operation and maintenance of entrusted facilities, such as broadcasting transmission stations, long-distance transmission facilities, and emergency transmission facilities (Articles 3 and 4), and the defendant company will transfer the facilities and equipment of the non-party company to the non-party 1 to the non-party 8 company to the maximum extent possible if the non-party company would transfer the facilities and equipment of the non-party 1 to the non-party 2 company to the non-party 9 company. The non-party company will transfer the facilities and equipment of the non-party 1 to the non-party 1 company to the non-party 2 company for the same purpose and will not change the entrusted facilities (Article 10).

Therefore, in light of the fact that the legal relationship under the consignment agreement between the defendant company and the non-party company continues to be held by the defendant company and the non-party company did not comprehensively succeed to the rights and obligations related to the ownership of the transferred physical facilities, the transfer of business (see, e.g., Supreme Court Decisions 92Da23834, Jan. 25, 1994; 91Da40276, Jul. 14, 1992; 91Da12806, Nov. 12, 1991) and the merger of companies (see, e.g., Supreme Court Decision 95Da41659, Dec. 26, 1995); and where part of the company was separated from the company's legal relationship (see, e.g., Supreme Court Decisions 84Da1409, Feb. 24, 1987; 200Da46567, Apr. 6, 1997).

In addition, even if the fact of transfer to the non-party corporation had been known within the defendant corporation for more than a few months, and there was sufficient time to review the fact and make decisions on his taking advantage of the government policies, if the defendant corporation took part of its duties inevitably entrusted to the non-party corporation, and received retirement benefits from the defendant corporation to the non-party corporation without any objection and then newly appointed to the non-party corporation, the retirement from the defendant corporation and the non-party corporation's entry into the non-party corporation cannot be viewed as being made against the plaintiff's will even though the defendant corporation took part in a lump sum against all of the defendant corporation and the non-party corporation's personnel appointment. Since the defendant corporation did not expect that the post-entrusted work should not be returned, the employment relationship between the plaintiff and the defendant corporation was interrupted by the above retirement and the non-party corporation. Accordingly, since the work entrusted to the non-party corporation was returned to the non-party corporation again due to the fact that the plaintiff retired from the non-party corporation and again retired from the defendant corporation, it cannot be viewed that the employment relationship was terminated.

Therefore, the judgment of the court below is just to recognize and determine that the labor relationship between the plaintiff and the defendant company was severed, and the court below's decision that the company should be identical to the company in order to recognize the continued labor should be held to the effect that the labor relationship should be succeeded in principle in the case where the company's physical facilities and human organization are identical with the company's business purpose, not just the identity of the corporate personality, but also the business purpose, and as such, it cannot be viewed as a violation of the precedents of the party members. Thus, the court below did not err in the violation of the rules of evidence as alleged in the ground of appeal.

B. Regarding ground of appeal No. 2

The "worker of the same kind" who is subject to the collective agreement under Article 37 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) refers to a person who is expected to be subject to the collective agreement pursuant to the provisions of the collective agreement in question (see, e.g., Supreme Court Decisions 95Da4056, Apr. 25, 1997; 95Da39618, Dec. 22, 1995). Thus, a person who is not eligible for membership pursuant to the provisions of the collective agreement is not expected to be subject to the collective agreement, and thus is not subject to the application of the collective agreement.

However, according to the collective agreement concluded between the defendant company and the defendant company's trade union (Article 6 subparagraph 1), employees with a position of at least the head of the department may not become trade union members. Since the plaintiff retired from office as the head of the department from June 1, 1988 (Evidence 6-2 of the above Article), the plaintiff is not eligible for the wage agreement concluded between the defendant company and the trade union pursuant to Article 69 of the collective agreement (Article 11 and 190) (Article 69 of the collective agreement). Thus, the plaintiff is not eligible for the wage agreement concluded between the defendant company and the labor union (Article 69 of the collective agreement between the non-party witness's testimony that the wage agreement applies to the plaintiff, but this does not affect the above conclusion because it is not merely a fact that the defendant company dealt with the plaintiff in accordance with the various standards set forth

In addition, according to Article 7 (4) of the wage rules of the defendant company, the retirement age of the employee shall be 58 years of age (paragraph (1)), and the retirement age of the employee shall be 50 years of age (paragraph (2) of this Article), and the retirement age of the employee shall be 50 years of age (paragraph (2) of this Article) under Article 42 of the rules of employment of the defendant company, although the retirement age of the employee shall be 5 days of age per month and the retirement age of the employee shall be 58 days of age. The retirement period of December 5 of each year shall be 00:00 days of December. In calculating the average wage, the date on which the cause for retirement occurred shall not be included (see Article 50 of the Rules of Employment and Articles 96Nu5469, Jul. 9, 199). However, if the retirement age of the employee can be worked in December, it shall not be paid to the employee at will by December 14 of the retirement date (see Article 50 and the full retirement age shall not be paid to the employee).

In addition, in case where a person retires in the middle of a month and receives the full amount of the monthly remuneration, he shall include the full amount of the remuneration in the average wage. This decision applies only to the case where he can receive the full amount of remuneration for the relevant month even if he retires in the middle of a month under the collective agreement or rules of employment even if he retires in accordance with the collective agreement or rules of employment, and the entire amount of the remuneration shall not be included in the case where the employer voluntarily pays even though he is not entitled to the payment in accordance with the wage agreement or wage regulations as in this case.

Therefore, in this case, the decision of the court below that the plaintiff's assertion that all of the remuneration that the plaintiff received in the month of retirement should be included in the average wage is justifiable and that only the part corresponding to the four-day portion among them is included in the court below's decision. It is not erroneous in the misapprehension of legal principles as to wage agreements, misconception of facts against the rules of evidence, or interpretation of disposal documents, which is contrary to the rules of evidence, and it

2. We examine the Defendant’s grounds of incidental appeal.

According to the records, the defendant company recognized that the special bonus of 100% per year is paid every year on the New Memorial Day, the special bonus of 50% per year, and the physical training expenses of 50% per year each time. Thus, the decision of the court below that included the special bonus of 10% per year in the wages which are the basis for calculating the average wage is just, and there is no error of law as discussed in the judgment of the court below.

In addition, the argument that there was a practice that does not include the above bonus and the physical training expenses in the average wage can not be a legitimate ground for appeal as the first argument that the defendant first raised in the trial, and it cannot be a legitimate ground for appeal, and it cannot be said that there was an error of law in the judgment below's failure to exercise the right of explanation or incomplete hearing, and there is no ground for appeal.

3. Therefore, the plaintiff's appeal and the defendant's incidental appeal are all dismissed, and the costs of appeal and the incidental appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)