(영문) 서울행정법원 2011.10.28. 선고 2011구합25043 판결

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 2, 3 and 4.

A. The Plaintiff is a person conducting a tax project in Gangnam-gu Seoul Metropolitan Government B building C.

B. On November 7, 2010, the Plaintiff asserted that D was employed on April 29, 2010, and applied for the payment of new employment promotion subsidy for three months from April 29, 2010 to July 28, 2010. In light of the fact that the employment contract period is one year in the written employment contract made between the Plaintiff and D (hereinafter “instant employment contract”), D did not meet the requirements for the payment of new employment promotion subsidy, and on December 23, 2010, the Plaintiff issued a disposition rejecting the payment of new employment promotion subsidy to the Plaintiff (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the fact that the term "labor contract period" indicated in the instant employment contract is a clerical error in the term "annual salary contract period", that there is a phrase such as automatic extension of contract, interim settlement of accounts for retirement benefits or subscription to retirement pension plans, and that it is common to say that a worker wants to have long-term service of a worker in the case of a tax business, D cannot be deemed a worker whose employment period is fixed. Therefore, the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the entries in Gap evidence 2 and Eul evidence 2.

1) The main contents of the instant employment contract (Evidence A No. 2) are as follows.

Terms of standardized employment contract: from April 29, 201 to April 28, 2011 (one year), if there is no separate notice between the employee and the employer, this contract shall be deemed to have been automatically extended for one year.

Periodical holidays and vacations: Each annual paid leave shall be granted 15 days’ paid leave at the time of attendance for not less than 80 percent per year pursuant to Article 60 of the Labor Standards Act, and monthly paid leave shall be calculated when working for less than one year (hereinafter referred to as "monthly leave").

Provided, That the total annual salary shall be KRW 14,400,000 ( KRW 14,400,000) per day.

○ The amount of the above annual salary shall be 12 equal and payable in installments on the 21st day of each month.

Retirement allowances: Retirement allowances shall be paid by making an interim settlement each year at the expiration of a one-year contract or accumulated as a member of a retirement pension plan.

2) Meanwhile, the main contents of the contract (No. 2) signed by the Plaintiff while employing E on October 1, 2008 are as follows.

Terms of employment contract: From October 1, 2008 to October 1, 2008: 0 annual salary (including food and bonus): 12,000,000 won (monthly payment: 1,000,000 won): 21st of each month;

D. Determination

According to Article 23 of the Employment Insurance Act, Article 26(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010); Article 44(3) and Article 15 subparag. 1 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 17, Jan. 3, 201); a business owner who newly employs a person in a certain period of unemployment through an arrangement by an employment security office, etc. and does not resign from employment for three months prior to employment to 12 months after employment; however, a new employment promotion subsidy shall not be paid, if there is a fixed employment contract period.

In addition, even in cases where an employee and an employer prepare a written employment contract fixing a period of time when entering into the employment contract, if it is deemed that a fixed period of time is merely a form of employment contract by comprehensively taking into account the content of the contract, the motive and circumstances leading up to the formation of the employment contract, the purpose and genuine intent of the parties concerned, practices on the method of concluding the employment contract of the same kind, the rules on the protection of workers, etc., notwithstanding the terms and conditions of the contract, it shall be deemed that a non-fixed period of time has been entered into, but in principle, in accordance with the terms and conditions of the employment contract, which is a disposal document, if such circumstances are not acknowledged (see, e.g., Supreme Court Decision 2005Du2247, Jul

Unlike the language and text of the labor contract, the plaintiff bears the burden of proving that there is a circumstance that the term is merely a form of a contract. As seen above, the plaintiff does not state the termination date of the labor contract in the written employment contract prepared by employing E. Whether to renew the labor contract in accordance with the content of the labor contract in this case shall be determined at the expiration of one year, and if the plaintiff and D do not want to renew the contract, the labor contract will not be automatically extended. The contents of the labor contract in this case are difficult to be viewed as a premise that there is no fixed term of the labor contract. In light of the fact that there is no evidence to recognize that there is no practice that the term of the labor contract in the written employment contract in this case is merely a form of a fixed term of the labor contract in the tax accountant industry, it is difficult to recognize that the written evidence in the written employment contract in this case is merely a form of a fixed term of the labor contract in this case, and there is no other evidence to acknowledge it, it is reasonable to deem that the labor contract in this case between D and the plaintiff, an employer.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.