[1] In cases where a fixed-term employment contract of a professional English instructor appointed under the Elementary and Secondary Education Act is repeated or renewed, and the total period of continuous work exceeds four years, whether such contract shall be deemed an employee who entered into an employment contract without a fixed period of time (affirmative)

[2] In a case where a fixed-term worker continues to work without a certain gap due to the repeated or renewed fixed-term employment contract, whether the total period from the first fixed-term employment contract to the last fixed-term employment contract is included in the "total period of continuous work" as prescribed by Article 4 of the Act on the Protection, etc. of Fixed-term and Part-Time Workers (affirmative in principle) / A case where a continuous or renewed fixed-term employment contract cannot be added up the period of the previous or renewed fixed-term employment contract when calculating the "total period of continuous work"

[3] The method to determine whether the State or a local government’s provision of jobs for public services constitutes “the case where the State or a local government provides jobs for the development of people’s vocational abilities, promotion of employment, and provision of services necessary for the society in accordance with other statutes, such as the Framework Act on Employment Policy and the Employment Insurance Act” under Article 4(1)5 proviso of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, and Article 3(2)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term

[1] The main text of Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) provides that an employer may hire a fixed-term worker within a period not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, the total period of continuous work does not exceed two years). Article 3(3)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers provides that a fixed-term worker may be employed as a fixed-term worker in excess of two years if any other statute prescribes that a fixed-term worker may be employed for a fixed-term worker, apart from Article 4(1) of the Act on the Fixed-term and Part-Time Workers, and that an employer may hire an industrial-educational teacher, honorary teacher, instructor, etc. in addition to a fixed-term teacher, and that an industrial-educational teacher may be employed for a fixed-term worker within a period not exceeding one year if necessary for the operation of curricula (Article 22 of the Elementary and Secondary Education Act).

Meanwhile, Article 4 (2) of the Fixed-term Workers Act provides that if an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed period of

In full view of the contents, structure, etc. of these provisions, an employer may use an English language instructor, who is a fixed-term worker, appointed pursuant to the Elementary and Secondary Education Act and subordinate statutes, for more than two years. However, an English language instructor whose fixed-term employment contract is repeated or renewed and whose total period of continuous work exceeds four years shall be deemed an employee who has entered into an employment contract without a fixed period of time.

[2] Considering the contents of the provisions of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Employment Act”) and the legislative intent of guaranteeing workers’ status by preventing abuse of a fixed-term employment contract, where a fixed-term employment contract is repeatedly concluded or renewed and a fixed-term worker continues to work without a certain gap, barring any special circumstance, the total period from the first fixed-term employment contract to the last fixed-term employment contract shall be included in the “total period of continuous work” as prescribed in Article 4 of the Fixed-term Employment Act: Provided, That in light of the nature of the work subject to a fixed-term employment contract, the intentions of the parties related to the repetition or renewal of a fixed-term employment contract, similarity of working conditions with the work contents and places of a fixed-term worker before and after a fixed-term employment contract, and the procedure or circumstances taken place in the process of termination, etc. of a fixed-term employment contract, if there are special circumstances, the continuous employment relationship of a fixed-term worker shall be deemed to have been terminated even before and after the fixed-term employment.

[3] Article 4(1)5 proviso of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) provides that an employer may employ part-time workers for more than two years in cases prescribed by the Presidential Decree, where the State or a local government provides jobs in accordance with the government’s welfare policies, unemployment measures, etc. Accordingly, Article 3(2)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Enforcement Decree of the Fixed-Term Act”) provides that “the case where the State or a local government provides jobs for the development of citizens’ vocational abilities, promotion of employment, provision of services necessary for the society, etc.” as one of the exceptional grounds for the restriction on the period of employment of fixed-term workers delegated under Article 4(1)5 proviso of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, one of the cases where the State or a local government provides jobs for public services should be determined by comprehensively considering the purpose and nature of the pertinent project and its sustainability.

[1] Article 4(1)6 and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 3(3)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 22 of the Elementary and Secondary Education; Article 42(1) and (5) of the Enforcement Decree of the Elementary and Secondary Education Act / [2] Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [3] Article 4(1)5 of the Act on the Fixed-Term and Part-Time Workers; Article 3(2)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term

[3] Supreme Court Decision 2014Da211053 Decided August 18, 2016

Busan Metropolitan City (Attorney Seo-jin, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor 1 and one other (Law Firm Inn, Attorneys Lee Jong-ap et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2017Nu14210 decided June 21, 2018

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The lower court determined, on the grounds indicated in its reasoning, that individual public schools belonging to local governments are merely subordinate agencies or facilities of local governments, and that the ultimate subject of rights, obligations, and responsibilities with respect to education is the relevant local government, and that the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) (hereinafter referred to as the “ Intervenor”) who is a professional English instructor was the Plaintiff, as the employer of the Intervenor under a labor contract concluded by the Intervenor, a local government, with

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the standing to sue in unfair dismissal remedy proceedings and the employer under labor contract, thereby failing to exhaust all necessary deliberations, or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

(a) Whether the intervenor is a worker who has concluded an employment contract with no fixed period;

1) The main text of Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Fixed-Term Act”) provides that an employer may employ a fixed-term worker within a period not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, to the extent that the total period of continuous work does not exceed two years). Article 3(3)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Enforcement Decree of the Fixed-Term Act”) provides that an employer may employ a fixed-term worker within a period not exceeding two years if other Acts and subordinate statutes prescribe that a fixed-term worker may be employed as an industrial-educational teacher, honorary teacher, instructor, etc. in addition to teachers, and that an industrial-educational teacher, such as English-educational teacher, etc. may be assigned to a school within a period not exceeding one year, and that an industrial-educational teacher may be appointed within a period not exceeding two years if necessary for the purpose of operating the curriculum.

Meanwhile, Article 4 (2) of the Fixed-term Workers Act provides that if an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed period of time.

In full view of the contents, structure, etc. of these provisions, an employer may use an English language instructor, who is a fixed-term worker, appointed pursuant to the Elementary and Secondary Education Act and subordinate statutes, for more than two years. However, an English language instructor whose total period of continuous work exceeds four years due to repeated or renewed labor contract shall be deemed an employee who has entered into an employment contract without a fixed period of time.

B) Furthermore, considering the content of the aforementioned provision and the legislative intent of preventing abuse of a fixed-term employment contract as seen earlier, in cases where a fixed-term employment contract is repeatedly concluded or renewed and a fixed-term worker continues to work without a certain gap, the total period from the first fixed-term employment contract to the last fixed-term employment contract shall be included in the “total period of continuous work” as stipulated in Article 4 of the Fixed-term Employment Act, barring special circumstances. However, considering the nature of the work subject to a fixed-term employment contract, the parties’ intent related to the repetition or renewal of a fixed-term employment contract, the similarity of the work contents, place, and working conditions of a fixed-term worker before and after a fixed-term employment contract, and the procedure or circumstances taken place in the course of the termination and repetition or renewal of a fixed-term employment contract, if there are special circumstances to deem that a new employment relationship, which is not a simple repetition or renewal of an existing fixed-term employment contract, the employment relationship was severed at that time, notwithstanding the continuous employment of a fixed-term worker, and as a result, the total period of employment contract cannot be calculated before and after the end.

2) The reasoning of the lower judgment reveals the following facts.

A) From September 1, 2009, the Intervenor 1 entered into an employment contract with the Busan ○ Middle School and renewed and concluded the employment contract in the year 201 on the grounds that the school will be closed while working as a professional English instructor, the Intervenor 1 entered into an employment contract in the year 201 on the grounds that it is expected that the school will be closed while serving as a professional English instructor.

After the employment relationship with the Busan ○○ Middle School was terminated, the Intervenor 1 was employed at the △△△ Middle School on March 1, 2012, based on the pool of professional English instructors managed by the Plaintiff without any separate recruitment procedure, and entered into an employment contract with the head of the △△△ middle school. After that, the Intervenor 1 continued to work at the △△△ middle school for four years on an annual basis, following a regular evaluation procedure.

On January 14, 2016, the head of △△△△ middle school notified the Intervenor 1 of the termination of the employment relationship and settled and paid retirement allowances after the maximum employment period of a professional English instructor on a fixed-term English basis expires as of February 29, 2016.

B) Meanwhile, the Intervenor 2 entered into an employment contract with the head of △ Elementary School and served as a professional English instructor from March 1, 201.

The Intervenor 2 said that the assistant principal of the △ Elementary School was unable to continue to work in the year 2012 from the assistant principal of the △ Elementary School, and thereafter, the Intervenor 2 was re-scheduled from the △ Elementary School to the △△ Elementary School through a letter of “Armonation of the professional English instructors in the early 2012, which was implemented on January 2, 2012 by the Plaintiff at the dong Office of Education in the 2012.”

On February 29, 2012, 2012, the head of △ Elementary School terminated labor relations with the Intervenor 2, and the Intervenor 2 served as a professional English instructor at △△ Elementary School without any separate recruitment procedure from March 1, 2012. The Intervenor 2 conducted a certain evaluation on an annual basis at △△ Elementary School, and continued to work for four years after renewal and conclusion of labor contract with △△ Elementary School.

on January 28, 2016, the head of △△ Elementary School notified that the maximum employment period of 2 participants expires on February 29, 2016, and that employment relationship is terminated.

3) We examine these facts and records in light of the legal principles as seen earlier.

A) From September 1, 2009 to February 29, 2011, the Intervenor 1 continued to serve at a public school belonging to the Plaintiff without the interruption of the labor contract period from March 1, 201 to February 29, 2016, respectively.

B) The intervenors were engaged in the same work as a professional English instructor during the above period, and working conditions, such as wages, were not substantially changed. Meanwhile, although the affiliated schools were changed once during the period of service of the intervenors, it is difficult to view the Intervenor as a recall of the labor relationship merely because it was a change in the place of work within the school to which the Intervenor belongs, the employer, as the Plaintiff’s employer

C) The Intervenor did not go through a separate open recruitment procedure in the process of changing the Intervenor’s school, and the Intervenor took part in the reorganization of the working school by the Plaintiff. Considering this, it is difficult to readily conclude that the Intervenor had an intent to completely terminate the continuous employment relationship, which had been repeated and renewed before the Plaintiff, solely on the ground that the Intervenor received the settlement of retirement allowances in the course of

D) There is no other evidence that the Plaintiff, an employer, formed a new employment relationship different from the existing one in the process of repeated and renewal of the fixed-term employment contract between the Intervenor and the Intervenor.

E) Meanwhile, a specialized English instructor is an institution introduced to enhance the trust in English education by strengthening the manpower to be in charge of English language lessons through the expansion of the number of classes at the beginning school, the extension of the number of classes at the middle school, and the expansion of the number of classes at the middle school, by strengthening the practical English education for each school unit to enhance the students’ understanding ability to communicate with the English language. As such, the part of the English specialized English instructor provided by the intervenors has the nature of regular duties. Considering the aforementioned circumstances, the continuity of labor relations cannot be denied merely with the lapse of four years as prescribed by the Elementary and Secondary Education Act.

F) Ultimately, in full view of these circumstances, the Intervenor, a fixed-term worker, continued to work for more than four years by repeating and renewal the fixed-term employment contract with the Plaintiff, and there is no special circumstance to deem that the employment relationship was severed by forming a new employment relationship during the total period of continuous employment. Therefore, the Intervenor, a fixed-term worker, should be deemed an employee who entered into an employment contract without a fixed period of time under Article 4(2)

4) In the same purport, the Plaintiff’s notice of the expiration of the contract period on February 29, 2016 to the Intervenor constitutes unfair dismissal. On this premise, the first instance judgment was justifiable, and the lower judgment did not err by misapprehending the legal doctrine on Article 4(2) of the Fixed-term Act, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the grounds of appeal.

B. As to the remaining grounds of appeal

The lower court determined that it is unnecessary to further examine whether the right to expect renewal of an employment contract is recognized as an employee who has entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Employment Act, inasmuch as the total period of continuous employment of the intervenors, who are specialized English lecturers, exceeds four years.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on the right to renew renewal of fixed-term workers and Article 4(2) of the Fixed-term Workers Act.

3. As to the third ground for appeal

A. As to the ground of appeal on temporary business

The court below rejected the Plaintiff’s assertion that, in light of the purport of introducing the English language instructor system, it is difficult to deem that the English language instructor system constitutes an exceptional case where the English language instructor system constitutes an employee who entered into an employment contract without a fixed period of time and is not converted into an employee who entered into an employment contract for a limited period of time, on the grounds stated in its reasoning, such as that it is difficult to deem that the contract term is determined by the time when the business or service is anticipated to be completed with respect to the business or specific business,

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on Articles 4(1)1 and 4(2) of the Fixed-term Agency Act, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary

B. As to the ground of appeal on the ground of exception under Article 4(1)5 of the Fixed-term Employees Act

1) Article 4(1)5 proviso of the Fixed-term Workers Act provides that an employer may employ fixed-term workers for more than two years in cases where the State or a local government provides jobs in accordance with the government’s welfare policies, unemployment measures, etc. Accordingly, Article 3(2)1 proviso of the Enforcement Decree of the Fixed-term Workers Act provides that “where the State or a local government provides jobs for the development of citizens’ vocational abilities, promotion of employment, and provision of services necessary for the society in accordance with other Acts and subordinate statutes, such as the Framework Act on Employment Policy and the Employment Insurance Act” as one of the exceptions to the restriction on the period of employment of fixed-term workers delegated under Article 4(1)5 of the Fixed-term Workers Act. Public services provided by the State or a local government for public services ought to be considered to have the nature of services necessary for society due to its inherent nature. Therefore, whether the State or a local government falls under Article 4(1)5 proviso of the Fixed-Term Workers Act, Article 3(2)1 of the Enforcement Decree of the Fixed-Term Workers Act ought to be determined by comprehensively considering various circumstances such as the background, purpose and nature of the project.

2) The lower court determined that the English language specialist system is the main purpose of the recruitment of English faculty members to strengthen English public education, and the qualification to apply for the English language specialist is premised on the ability as a English language specialist, and thus, the above applicant cannot be deemed to constitute a vulnerable class in employment as prescribed by the Framework Act on Employment Policy, based on the reasons indicated in its reasoning, the lower court determined that the English language specialist system does not fall under the cases prescribed by the Presidential Decree where the English language instructor provides jobs in accordance with the government’s welfare policy and unemployment measures, etc. under Article 4(1)5 of the Act.

3) Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, contrary to what is alleged in the grounds of appeal, the lower court did not err in its judgment by misapprehending the legal doctrine on Article 4(1) proviso of the Fixed Period Act and failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence

4. Conclusion

Therefore, the appeal is dismissed. The costs of appeal are assessed against the losing party, including the part arising from participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)