Plaintiff 1 and one other

Plaintiff 2 and two others (Law Firm Lee & Lee, Attorneys Lee Hy-hwan et al., Counsel for the plaintiff-appellant)

Korea Marine Pollution Prevention and Removal Association (Law Firm Sejong, Attorneys Lee Lee-ju et al., Counsel for the plaintiff-appellant)

March 27, 2009

Seoul Central District Court Decision 2006Gadan248607 Decided September 9, 2008

1. Of the judgment of the court of first instance, the part against plaintiffs 1 and 3 corresponding to the money ordered to be paid below shall be revoked.

The defendant shall pay to the plaintiff 1 and 3 an amount of money stated in the "amount of additional appropriation in the appellate trial" of the "Retirement Allowance and Calculation Table of Unpaid Wages", and an amount calculated by applying 5% per annum from July 11, 2006 to April 3, 2009, and 20% per annum from the next day to the date of full payment.

2. The remaining appeals by plaintiffs 1 and 3 and all appeals by plaintiffs 2, 4, and 5 and the defendant are dismissed.

3. The total costs of the lawsuit between the plaintiffs 1, 3 and the defendant are twenty minutes, and the remainder is borne by the above plaintiffs, and the costs of the appeal between the plaintiffs 2, 4, 5 and the defendant are borne by the above plaintiffs.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

1. The purport and purport of the appeal by the plaintiff 1 and 3

A. Purport of appeal

Of the judgment of the court of first instance, the part against the above plaintiffs which ordered payment under the above part of the judgment shall be revoked. The defendant shall pay to the above plaintiffs 20% interest per annum from the day after delivery of the complaint of this case to the day of complete payment with respect to each of the corresponding amounts stated in the "additional appropriation amount of the appellate trial" in the "Retirement Allowance and Calculation Table of Unpaid Wages".

B. Purport of claim

The defendant shall pay to the above plaintiffs 20% interest per annum from the next day of service of the complaint of this case to the day of complete payment with respect to each corresponding amount in the "total amount of claim" column of the attached sheet of this case.

2. The purport and purport of the appeal by the plaintiff 2, 4, and 5

Of the judgment of the court of first instance, the part against the above plaintiffs shall be revoked. The defendant shall pay to the above plaintiffs 20% interest per annum from the day after delivery of the complaint of this case to the day of complete payment of all the above amounts.

3. The defendant's purport of appeal

In the judgment of the first instance, the part against the defendant among the part against the plaintiff 1 and 3 shall be revoked, and the above plaintiffs' claims corresponding to the revoked part shall be dismissed, respectively.

1. Basic facts

A. Status of the parties

(1) The Korea Marine Pollution Response Corporation (hereinafter “the Korea Marine Pollution Response Corporation”) is a juristic person established to preserve the marine environment by improving the pollution response capability through education, training, and technology development on the efficient prevention of wastes, such as oil discharged into the sea in accordance with the Prevention of Marine Pollution Act. The Plaintiffs are current and former workers of the above association. As the Prevention of Marine Pollution Act was repealed and the Marine Environment Management Act was enforced, the Prevention of Marine Pollution Act was dissolved on January 21, 2008 and the Defendant succeeded to all rights, obligations, and property of the Prevention Association.

(2) Pursuant to the Prevention of Marine Pollution Act, the State has provided funds and equipment necessary for the above businesses to the Prevention of Marine Pollution Act, and the Prevention of Marine Pollution Act has been supervised by the State as to its operation by submitting business plans, budget operation plans and settlement of accounts to the Minister

(3) On March 15, 1997, the Korea Container Terminal Authority (hereinafter “the Korea Container Terminal Authority”) comprehensively accepted the tugboat business of the Maritime Transport Industry Corporation. On July 31, 1998, the Maritime Pollution Response comprehensively accepted the tugboat business of the Maritime Transport Industry Corporation. The Maritime Pollution Response Corporation and the Maritime Pollution Response Association decided to include the number of years of continuous service in the previous workplace in relation to the payment of retirement allowances to employees who take over and take over all employees engaged in the business subject to the acquisition at the time of each comprehensive

(4) Plaintiffs 1 and 2 retired from office in the Ministry of Oceans and Fisheries, and entered the pest control association on August 1, 1998. Plaintiffs 3, 4, and 5 were the employees of the wharf, and the tugboat business was comprehensively transferred to the pest control association on July 31, 1998.

(b) Retirement age regulations;

(1) The personnel regulations enacted on November 13, 1997 stipulate that the retirement age for employees of Grade II or higher in the management position (general position) shall be 61 years, and that for other cases, 58 years, if the month in which the retirement age reaches is between January and June, it shall be on June 30, and if between July and December, it shall be on December 31, respectively.

(2) On Aug. 1, 1998, the pollution response association succeeded to the employees of the wharf and implemented the plan shall apply the retirement age standard at the time of the service of the wharf to the successor who reaches the retirement age within three years.

(3) When a pollution response association succeeds to the employees of the wharf, the rules of employment of the wharf shall be at least Grade 2, Grade 61, Grade 3, Grade 3, and Grade 59, with respect to the retirement age of its employees.

(4) On December 31, 1998, the pest control association amended and implemented personnel regulations with the content that the retirement age of employees shall be reduced by one year, and that of class 2 or higher in the management office (general office) shall be 60 years in the case of class 2 or more, and that of other cases shall be 57 years in the case

(c) Remuneration regulations;

(1) According to the remuneration regulations enforced from November 13, 1997 by the pest control association, retirement allowances shall be paid to employees who have served for more than one year, and it shall be the amount calculated by multiplying the monthly average remuneration at the time of retirement by the same payment rate as that stated in the annexed retirement allowance payment rate.

(2) On August 1, 1998, the remuneration regulations that the pest control association succeeded to and implemented by the employees of the wharf Corporation include the period of service for the employees succeeded to by the wharf Corporation. The period of service for the employees of the wharf Corporation at the time of succession shall include the period of service, and the retirement allowance payment rate for the employees of the wharf Corporation at the time of succession (attached Form 31, 1998) shall be paid at the time of retirement by recognizing only the rate of payment of retirement allowances (the same as the attached

(3) The remuneration rules amended and enforced on December 31, 1999 provide that retirement allowances shall be paid to employees who have served for not less than one year, and the average wage for one month for each year of continuous service shall be paid as retirement allowances under the Labor Standards Act, and the retirement allowances shall be paid to employees employed for the period of continuous service by December 31, 199, on a lump sum basis, and the retirement allowances accrued from January 1, 200 shall be paid as retirement allowances until December 31, 199.

(d) Interim settlement, etc. of retirement allowances;

(1) The Plaintiffs are employees of Grade III or lower in charge of the pest control association or wharf.

(2) On December 31, 199, Plaintiff 2 retired from office as of December 31, 199, received retirement benefits applying the progressive retirement system and retired from office. On December 31, 1999, the remaining Plaintiffs, other than the above Plaintiff, received a settlement of accounts of retirement benefits applying the progressive retirement payment system as stated in the payment rate as shown in the separate retirement allowance payment rate, and received retirement allowances applying the simple amount of the continuous employment period from January 1, 200 to the date of interim settlement as of January 1, 200 following the date of interim settlement as of the actual retirement date as of December 31, 199. The Plaintiffs’ retirement allowances received after interim settlement of accounts for 30 days, average wages at the time of retirement, date of birth, and unpaid wage calculation are as stated in the separate retirement allowance and the list of unpaid wage calculation.

[Reasons for Recognition] A’s free dispute, Gap’s evidence 1 through 3, Gap’s evidence 7, Gap’s evidence 8-1, 2, Gap’s evidence 9, Gap’s evidence 10-1, 2, Gap evidence 11, Gap’s evidence 12-14, Gap’s evidence 2, Gap’s evidence 15, Gap’s evidence 21 through 23, Gap’s evidence 24-1 through 3, Gap’s evidence 25 through 27, Gap’s evidence 28-2, the purport of the whole pleadings, and the purport of the whole pleadings

2. Determination on retirement age and retirement allowance provisions applicable to the instant case

A. The retirement age provision applicable to Plaintiff 1 and 2 (whether the provision on the personnel affairs revised on December 31, 1998 applies)

(1) The validity of the amendment of personnel regulations dated December 31, 1998

The fact that the pest control association revised the personnel regulations as of December 31, 1998 and reduced the retirement age from 58 to 57 years and 1 year, as seen earlier, is apparent that the changed retirement age regulations are disadvantageous to the above plaintiffs. Therefore, the reduction of the retirement age according to the revised personnel regulations of the pest control association without consent of workers by collective decision making has no effect.

(2) Judgment on the Defendant’s assertion of ratification

The defendant asserts that at the time of the amendment of the personnel regulations on December 31, 1998, the majority of the employees employed at the time of the amendment of the personnel regulations on December 31, 1998 and the majority of the successors of the wharfs obtained ex post facto prosecutions on the amendment of the above personnel regulations, and the above ratification takes effect retroactively at the time of the amendment of the personnel

If Eul evidence Nos. 4-1 through 34, Eul evidence Nos. 5-1 through 3, and Eul evidence Nos. 5-1 through 3, the purport of the whole pleadings is shown, it is found that the pest control association received a written consent ex post facto from 226 workers who were in office from 334 to 3 April 7, 2006, among 334 workers who were in office at the time of the amendment of the personnel regulations, even though it is recognized that the majority of workers are given consent to the amendment of the personnel regulations disadvantageous to the workers, the consent is only effective to the workers who were in office at the time of the consent, and it does not affect the workers who already retired before the consent was obtained, and thus, it does not affect the workers who dispute the validity of the amendment of the personnel regulations after retirement (see Supreme Court Decision 91Da31753, Nov. 24, 192). The defendant's above assertion is without merit.

(3) Judgment on the Defendant’s assertion of rationality under social norms

The defendant asserts that the change of personnel regulations of this case was made to the minimum necessary extent according to the government's instruction, and that the measures to protect workers are appropriate in accordance with social norms, and thus, it is valid without the consent of a majority of workers.

In light of the purport of the argument in the evidence Nos. 1-1 through 19 and No. 2, the organization’s personnel regulations were amended to reduce retirement age by amending the personnel regulations of government-invested institutions. The organization was a measure to avoid budget reduction in accordance with the government’s public sector’s restructuring policy such as reduction of personnel expenses and ordinary expenses, etc. A pollution response association implemented the retirement preparatory leave system that employs part of the retired employees as non-regular workers and grants paid leave from June 30, 202 to three months before the scheduled retirement date from the scheduled retirement date to the scheduled retirement date on December 31, 2004. However, it is difficult to view that the Defendant’s early change in the employment policy is difficult to find that there is considerable reason to acknowledge that there is insufficient economic efficiency and efficiency to reduce retirement age due to the above change in the employment regulations.

(4) The theory of lawsuit

Therefore, the retirement age of Plaintiff 1 and 2 shall be 58 years of age in accordance with the personnel regulations before the amendment of December 31, 1998.

B. The retirement age and retirement allowance provision applicable to Plaintiff 3, 4, and 5 (whether the provisions of the subsidiary corporation apply)

(1) Employment rules applicable for comprehensive succession of employment

In order to unilaterally revise the contents of the existing working conditions to disadvantage workers due to the amendment of the rules of employment, consent by a collective decision-making method of a group of workers under the previous rules of employment is required. The consent method is required if there is a labor union consisting of a majority of workers, and if there is no such labor union, the labor union must consent by a majority of workers, and it cannot be effective as an amendment to the rules of employment unless there is such consent. Therefore, it shall not be effective as an individual consent to the amendment of the rules of employment (see Supreme Court Decision 77Da355 delivered on July 26, 197). In a case where a labor relationship is comprehensively succeeded, an employee shall maintain the same labor relationship as that of the previous one, and in order for an employer to unilaterally amend the rules of employment or apply the rules of employment of a corporation which has succeeded to unfavorablely than the previous one, the employer may unilaterally change the previous working conditions or apply the rules of employment of a corporation which succeeded to the previous working conditions to workers without such consent. In this case, the previous rules of employment may not be applied to workers (see Supreme Court Decision 196Da2565.

As seen earlier, the pollution response association’s comprehensive succession of the labor relations of Plaintiff 3, 4, and 5 is as follows. The retirement age applicable to the above plaintiffs after the pollution response association succeeded to the labor relations is shorter than one year compared to the retirement age of the wharf, and the retirement allowances also are recognized only before the comprehensive succession of the rights and the terms of the personnel management regulations and the remuneration regulations for the pollution response association’s disadvantage to the above plaintiffs. As such, with respect to the personnel management regulations and the remuneration regulations of the pollution response association that stipulate the unfavorable contents to the employees succeeded as above, the above Plaintiffs’ retirement age and retirement allowances of the above Plaintiffs who succeeded to the labor relations from the wharf Corporation without the consent of the worker group that succeeded to the labor relations from the pollution response

(2) Determination as to the defendant's assertion that there was consent by collective decision making method

The defendant asserts that at the time of the comprehensive succession of the tugboat business of the wharf, the employees succeeded to the wharf by the collective decision-making method have been approved.

Where the contents of working conditions prescribed in the rules of employment are modified to workers at a disadvantage, if there is no labor union consisting of a majority of workers, consent of the majority of workers may be required. However, the above method of meeting is allowed not only to hold a meeting at one time but also to gather opinions from workers by the organization or unit department of one business or workplace under the exclusion of employer intervention or interference, and to gather overall opinions from the workers. (Supreme Court Decision 2001Da18322 Decided November 14, 2003), Eul’s evidence 6-1 through 186, Eul’s evidence 12-1 through 3, and Non-party 1’s testimony from the above point of view that it is difficult to find that there is no other evidence that the non-party 1 and the chief of the NY exchange with each other of the above departments, and that the non-party 2 and the other party 1 were not entitled to intervention from each other’s general position after considering the circumstances that the non-party 1 and the other party 1 were not entitled to intervention from each other’s general position.

(3) Sub-decisions

Therefore, the calculation of the retirement age and retirement allowance of the plaintiff 3, 4, and 5 who succeeded to the labor relationship from the terminal to the pest control association should be based on the provisions of the wharf.

C. The retirement allowance provision applicable to the plaintiffs (whether the single retirement allowance provision amended as of December 31, 1999 applies)

(1) The validity of the amendment of the salary regulations of December 31, 1999

The fact that the pest control association revised the remuneration regulations on December 31, 199 and changed the retirement allowance system from the progressive system to the fractional system is clear in light of the content of the amended retirement allowance system to the disadvantage of workers. As such, the plaintiffs' retirement allowance regulations on remuneration for the pest control association that stipulate unfavorable contents as above should be based on the retirement allowance regulations before the revision unless they agree by the collective decision-making method of the workers' group.

(2) Determination as to the defendant's assertion that there was consent by collective decision making method

The defendant asserts that the modification of the retirement allowance system is valid because the majority of employees consent at the time of the modification.

If Gap evidence No. 28-2, Eul evidence No. 7-2, Eul evidence No. 16, Eul evidence No. 17, Eul evidence No. 17 and testimony of non-party No. 1, the Ministry of Oceans and Fisheries notified the Pollution Response Association of measures to improve the retirement allowance system around Jan. 1, 199, and accordingly, the Pollution Response Association prepared an amendment to the retirement allowance system by acquiring the meeting of the head of the department with regard to improvement measures for the retirement allowance system. On July 1999, the non-party No. 1's opinion that the director of the Pollution Response Association signed several branches at the time of the above revision of the above remuneration provision, "It is difficult to acknowledge that the non-party No. 5's opinion that the non-party No. 2 signed the above revision of the above remuneration provision," and the defendant's opinion that "the non-party No. 1 signed the above revision of the above remuneration provision to the 3-party 1's general opinion on the correction of the retirement allowance plan."

(3) Sub-decisions

Therefore, the retirement allowances to be paid to the plaintiffs should be calculated in accordance with the remuneration regulations before the revision of December 31, 1999.

3. Calculation of accrued wages and retirement allowances.

A. The defendant's obligation to pay unpaid wages and retirement allowances

Since the Defendant had the Plaintiffs retire at 57 years of age or 58 in accordance with the invalid retirement age regulations, the Defendant is obligated to pay the retirement allowances that would have been paid when they retired at the legitimate retirement age and the unpaid wages during the reduced period.

B. Judgment on the Defendant’s assertion of extinctive prescription

(1) The Defendant asserts that the extinctive prescription of the wage and retirement allowance claim, the payment date of which comes three years prior to the filing date of the instant lawsuit, has expired. Thus, according to Article 48 of the Labor Standards Act and Article 10 of the Guarantee of Workers' Retirement Benefits Act, the extinctive prescription of the wage and retirement allowance is three years, and the payment date of the unpaid wage and retirement allowance claim of Plaintiffs 2, 4, and 5, which fall under the part of the “extinctive prescription” as stated in the attached Form’s retirement allowance and unpaid wage calculation table, shall have arrived at three years prior to the filing date of the instant lawsuit, and therefore, the said Plaintiffs’ wage and retirement allowance claim of the above Plaintiffs has expired.

(2) The above plaintiffs knew that the revision of the personnel regulations of the defendant was illegal without the consent of a majority of workers, and the personnel regulations have the nature of legal norms between the above plaintiffs and the defendant before the judgment that the above plaintiffs are null and void as a kind of rules of employment, so it is difficult to expect the above plaintiffs to claim payment of the difference in wages and retirement allowances due to the lack of the defendant's revised personnel regulations of the above plaintiffs, so there were objective obstacles to the above plaintiffs' exercise of rights. Thus, the above plaintiffs asserted that the extinctive prescription of the right to claim the difference in wages and retirement allowances accrued from the time when they knew that the revision of the personnel regulations was null and void. However, "when it is impossible to exercise rights" which does not run as long as the extinctive prescription does not run refers to a case where there is a legal obstacle to the exercise of rights, and the situation where the above plaintiffs did not know the existence of the right and the possibility of exercise of rights does not affect the progress of prescription (see Supreme Court Decision 80Da2626, Jan. 19, 1982).

C. Judgment on the plaintiff 2, 4, and 5's conjunctive assertion

Plaintiff 2, 4, and 5 asserted that, even if the above plaintiffs' wage and retirement allowance claims were extinguished due to the lapse of the three-year statute of limitations, the pollution response association violated the above plaintiffs' employment obligation as employees, thereby unfairly forced retirement and making them not paid wages and retirement allowances. Since the above plaintiffs become aware of these illegal acts by the pollution response association after their retirement, the defendant is obligated to pay damages for each of the above plaintiffs' damages. However, the extinctive prescription expires after the lapse of three years from the time when the above plaintiffs' claim for damages due to illegal acts was known. Even if the family pollution response association retired from the above plaintiffs by applying the revised personnel regulations and remuneration regulations, barring special circumstances, it should be deemed that the above measures of the pollution response association were illegal when they retired from the above plaintiffs, and there is no evidence to prove that the above plaintiffs were aware of the above illegal acts by the pollution response association only when they retired from office. Therefore, the above plaintiffs' assertion is without merit.

D. Calculation of the unpaid wages, retirement allowances, and retirement allowance difference by Plaintiffs 1 and 3

(1) The retirement age regulations and retirement allowance regulations applicable to the above plaintiffs, retirement allowance regulations, retirement allowance payment rate, and retirement allowance payment rate are as seen earlier.

(2) The difference in the amount of unpaid wages, retirement allowances, and retirement allowances that the above plaintiffs should have paid according to the above criteria is as indicated in the separate retirement allowance and the unpaid wage calculation table, and the defendant is obligated to pay the above plaintiffs each amount stated in the "total amount of retirement allowance" and the "paid wage calculation table."

4. Conclusion

Therefore, with respect to each of the above "amount cited in the judgment of the court of first instance", which is the part cited in the judgment of the court of first instance out of the amount stated in the separate sheet of "retirement allowance and unpaid wage calculation" for plaintiffs 1 and 3, the above "amount cited in the judgment of the court of first instance" as to each of the above amount, as the above plaintiffs seek after July 11, 2006 as to the above amount, it is reasonable to dispute over the existence and scope of the defendant's obligation to pay 5% per annum under the Civil Act from September 9, 2008, which is the date of the judgment of the court of first instance, and 20% per annum from the next day to the date of full payment, the above part of the appeal of the plaintiff 1 as to the above "amount cited in the judgment of second instance" and the remaining part of the judgment of the court of first instance as to the above "amount cited in the judgment of second instance" shall be dismissed by the court of first instance and the remaining part of the appeal of this case shall be dismissed within 20% per annum.

[Omission of Payment Rate of Retirement Allowances]

Justices Cho Jae-dae (Presiding Justice)