[1] The case holding that the receipt of the retirement allowance is null and void as a bad declaration of intention, in case where the company did not have any intent to terminate the employment relationship with the company to which it belongs or limit the number of years of service in calculating the retirement allowance, and the company was aware that the employee was not a true intention in the form of the company

[2] The validity of the transfer of a worker, when the worker submitted a resignation to the previous company in response to the transfer order and worked for the company to be separated after receiving retirement allowances (the validity of qualification)

[3] Where a valid transition is made, whether the labor relationship with the previous company is interrupted (affirmative with qualification)

[1] In a case where a worker retired from Company A, who is an affiliated company of the same group Eul, or was employed as an employee of the company Gap, not as the employee of the same group Eul, but as the employee of the company Eul, still employed as the employee of the company Eul, but as the employment relationship was still transferred, the period of secondment is terminated and the employee's employment relationship was terminated, the worker Gap was treated as transfer of retirement pay from the company Gap to the company Eul in light of the internal document of the company's internal document as the change of the employee Eul, or even if the worker submitted a resignation letter to the company Eul and received retirement pay from the company Eul respectively, the worker did not have an intent to review the termination of the employment relationship with the company Gap or the calculation of retirement pay from the company Gap to the company Eul. Thus, the above retirement pay received cannot be deemed as null and void as an expression of intention, and therefore, it cannot be deemed that the employment relationship between the worker Gap and the company Gap was terminated.

[2] The transfer of a family register is an agreement on a labor relationship with the previous company, and a new labor contract is concluded between the company to be transferred to another family register, so in principle, the consent of the employee is required. If a worker submitted a resignation letter to the previous company in response to the transfer order and received retirement pay and worked for the company to be transferred to another company, barring any special circumstance, it shall be deemed an act premised on the transfer of a family register consent. If a family worker conducted an act of retirement, entry, etc. with a company to be transferred to another company, it shall not be deemed as an act premised on the transfer of a family register, unless there is a special circumstance. Even if a family member conducted an act of retirement, entry, etc. with a company to be transferred to another company, it is merely an intention to receive retirement pay, not solely

[3] In a case where a valid transfer has been made, unless there are special circumstances, such as a special agreement between the parties to succeed to the employment relationship with the previous company, or a provision for adding up the employment period of the previous company to the employment rules of the company to be transferred, etc., the employment relationship with the previous company is terminated.

[1] Article 107 of the Civil Act, Article 27 (1) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) (see current Article 30 (1)), Article 28 (see current Article 34) / [2] Article 107 of the Civil Act, Article 27 (1) (see current Article 30 (1)), Article 28 (see current Article 34) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) / [3] Article 27 (1) (see current Article 30 (1)) and Article 28 (see current Article 34) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 196)

[2] Supreme Court Decision 92Nu8200 delivered on January 26, 1993 (Gong1993Sang, 868) / [3] Supreme Court Decision 95Da42270 delivered on May 10, 1996 (Gong1996Ha, 1807), Supreme Court Decision 95Da29970 delivered on December 23, 1996 (Gong197Sang, 476), Supreme Court Decision 96Da38438 delivered on July 8, 1997 (Gong197Ha, 2446), Supreme Court Decision 97Da6322 delivered on September 30, 197 (Gong197Ha, 3262), Supreme Court Decision 97Da57975 delivered on December 16, 197 (Gong1997Da3265975 delivered on December 197).

Plaintiff (Law Firm LLC, Attorneys Lee Young-hoon et al., Counsel for the plaintiff-appellant)

Japan Co., Ltd. (Law Firm Pacific, Attorneys Oyang-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na60243 delivered on July 8, 1998

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

The court below held on February 14, 1966 that when the plaintiff was working for the defendant company, which is an affiliate of Samsung Group, as well as 15 employees belonging to the defendant company, regardless of the plaintiff's intent, through business adjustment between the above affiliates of the above group, the 16 retirement allowances of the plaintiff et al. were transferred to the non-party company as of October 31, 1979. The plaintiff did not receive retirement allowances for the period of service from the defendant company and the non-party company, but did not receive retirement allowances for the period of service from the above affiliates of the above group, but did not change the plaintiff's first employment relationship with the non-party company as of January 31, 1980, since it did not change the plaintiff's first employment relationship with the non-party company as of January 31, 1980, and the plaintiff did not receive retirement allowances for the above company's first time after the above change of the plaintiff's employment salary for the non-party company's first time after the above change of the plaintiff's employment salary.

In light of the records, the Plaintiff’s resignation from Defendant 1 and the Plaintiff’s employees, who had been employed by Nonparty 1 as the company’s employees for public works and construction. From around 1973, the Defendant Company created and operated a large amount of money within the company’s building site, which was an affiliated company of the same group. The department in charge of the Plaintiff’s retirement pay was placed in the above two companies on December 24, 1976, and the Plaintiff was assigned to the company and the company’s employees for public works and construction. However, the Plaintiff did not receive retirement pay from Defendant 1 to the company on October 31 of the same year on the ground that the above two companies were transferred to Nonparty 1 as the company’s employees for public works and construction. However, the Plaintiff did not receive retirement pay from Defendant 1 for each of the following reasons. However, the Plaintiff was issued to the company on February 1, 1980 when the Plaintiff continued to engage in the same business at the same place, but did not receive retirement pay from Defendant 1.

Although the fact-finding and judgment of the court below are inappropriate, the conclusion that the labor relations between the plaintiff and the defendant company continue without interruption is just, and there is no error of law by mistake of facts against the rules of evidence as alleged in the grounds of appeal.

In addition, since the previous company's employment relationship is terminated, and a new employment contract is entered into between the company to be separated from the previous company, the consent of the worker is required in principle. If a worker submitted a resignation to the previous company in response to the previous company's employment order and received retirement allowances and worked for the previous company to be separated from the previous company, barring any special circumstance, it shall be deemed an act premised on the previous company's consent. If a family worker's act of retirement, job placement, etc. is conducted, it shall not be deemed as an act premised on the previous company's consent, unless there is a special circumstance. Even if a family worker's expression of intention to receive retirement allowances is merely an intention to receive the previous company's employment relationship, it shall not be denied if the employer did not know that it is not the actual intention, and even if the effective transfer takes place, it shall not be deemed that there was no special agreement between the parties to succeed the employment relationship with the previous company or that the previous company's employment rules should be added to the period of service in the previous company's previous company's employment relationship.

Furthermore, even if the court below did not make a determination on the previous practice, it cannot be said that there was an error of law in omission of judgment or incomplete hearing that affected the conclusion of the judgment.

Therefore, the appeal is 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 Chocheon-sung (Presiding Justice)