In a case where Gap was employed as a public relations officer in Eul National University and entered into an employment contract as a professional contract officer, and the State, upon the enforcement of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, appointed Gap as a "professional assistant" if he can be employed as a fixed-term worker for more than two years, and renewed the term of the employment contract and dismissed Gap on the ground of the expiration of the term of the employment contract, the case holding that the State dismissed Gap on the ground that it does not constitute "a assistant assistant under Article 14 of the Higher Education Act" as provided by the Act on the Protection, etc. of Fixed

In a case where Gap was employed as a professional contract officer in Eul's National University and entered into an employment contract with Eul as a professional contract officer, and the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter "Fixed-Term Act") should be changed to a fixed-term worker in excess of two years, and the State appointed a fixed-term worker in excess of two years and renewed the term of the employment contract on the ground of the expiration of the term of the employment contract, the case holding that the State concluded an employment contract with Eul as an employee under Article 4 (2) 4 (a) of the Act without justifiable grounds does not constitute "a fixed-term assistant under Article 14 of the Higher Education Act" on the ground that Gap was appointed as an employee under Article 4 (1) 6 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers.

Article 4(1)6 and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 3(3)4(a) of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Articles 14 and 15(4) of the Higher Education Act; Article 23 of the Labor Standards Act

Plaintiff (Attorney Kim Sung-jin, Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Kang Jae-sik, Counsel for defendant-appellant)

October 16, 2014

1. The Defendant’s dismissal against the Plaintiff on March 1, 2014 confirms that it is null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On March 1, 2007, the Plaintiff entered ○ University, a national university established and operated by the Defendant, as a public relations officer, and entered into an employment contract with the head of ○ University as indicated below:

B. As the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) was enforced from July 1, 2007, the Defendant, when using a fixed-term worker for more than two years, should be converted to a fixed-term worker, he/she would reduce the number of contractual workers, but if necessary for performing his/her duties, he/she would appoint the Plaintiff as an assistant. From March 1, 2010, the Defendant, from March 1, 2010, appointed the Plaintiff as an assistant teacher, as indicated in the “Attachment”) and reappointed (hereinafter “instant employment contract,” collectively between the Plaintiff and the Defendant) on an annual basis, dismissed the Plaintiff in the manner of refusing to receive work provided by the Plaintiff on the grounds of the expiration of the term of the employment contract as of March 1, 2014 (hereinafter “instant dismissal”).

The appointment term of the table contract term of March 1, 2007 or February 29, 2008 from March 1, 2007 to February 29, 2008, which was included in the main sentence, three professional contract positions (class A) from March 1, 2008 to February 28, 2009 from February 1, 2009 to March 1, 2009 to February 31, 2010 to February 3, 2013, 203, from March 1, 2009 to February 3, 2010 to February 3, 2013, 2010.

C. The Plaintiff was employed as the public relations officer of the ○ University on March 1, 2007, and was in charge of public relations and planning affairs. Even after being appointed as a teaching assistant on March 1, 2010, the Plaintiff was only in charge of public relations and planning affairs, and did not complete studies.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 7, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Although the Plaintiff has worked as a fixed-term worker for more than two years, the Defendant was dismissed to the effect that the labor relationship is terminated merely due to the expiration of the contract period, and the instant dismissal is null and void without justifiable grounds in violation of Article 23 of the Labor Standards Act, as seen below.

(1) The Plaintiff, as an officer in charge of publicity and planning as ○ University’s public relations officer, was in charge of academic affairs, or conducted research auxiliary affairs. Thus, the Plaintiff’s case where an employer is allowed to employ a fixed-term worker for more than two years does not constitute “interordination” under the proviso of Article 4(1)6 of the Fixed-term Workers Act, and Article 3(3)4(a) of the Enforcement Decree of the Fixed-term Workers Act. Therefore, the Plaintiff should be deemed an employee who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the

(2) Even if the Plaintiff’s total period of service falls under “the foregoing”, if the period of service corresponding to exceptions to the restriction on the period of service for fixed-term workers overlaps, the above period of service should be aggregated, and if the Plaintiff’s total period of service exceeds two years, the Plaintiff constitutes a worker who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Workers Act.

(3) In addition, since the labor contract between the plaintiff and the defendant was repeatedly renewed every seven years, the plaintiff had a legitimate expectation that the renewal of the above labor contract will continue, barring special circumstances.

B. Defendant’s assertion

Article 15(4) of the Higher Education Act provides that “The assistant instructors shall assist in the affairs concerning education, research, and school affairs.” Thus, the Plaintiff constitutes an exception to the restriction on the period of use of fixed-term workers provided for in the proviso of Article 4(1) of the Fixed-term Workers Act by falling under Article 4(1)6 of the Fixed-term Workers Act and Article 3(3)4(a) of the Enforcement Decree of the same Act. Therefore, the Plaintiff is not regarded as an employee who entered into an employment contract with no fixed period of time provided for in Article 4(2) of the Fixed-Term Workers Act, and thus, the dismissal of this case is justifiable due to the expiration of the term of the employment contract

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the contract of this case is an employment contract with no fixed term of contract

(1) Article 4(1) of the Fixed-term Workers Act provides that “An employer may hire a fixed-term worker within the extent not exceeding two years (in cases of the repeated renewal of a fixed-term employment contract, the total period of his/her continuous employment does not exceed two years).” However, the proviso exceptionally lists the cases where an employer is allowed to hire a fixed-term worker for more than two years, and exceptionally lists the cases in which an employer is allowed to employ a fixed-term worker, and stipulates “a fixed-term worker’s assistant duties pursuant to Article 14 of the Higher Education Act” [Article 4(1) proviso 6 of the Fixed-term Workers Act and Article 3(3)4(a) of the Enforcement Decree of

Meanwhile, Article 4(2) of the Fixed-term Employment Act prohibits repeated renewal of a fixed-term employment contract exceeding two years on the ground that “if an employer employs a fixed-term worker in excess of two years despite the absence or extinguishment of the proviso to paragraph (1), such fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed period of time.” Therefore, if an employer employs a fixed-term worker who does not fall under the above proviso beyond two years, it shall be deemed that an indefinite contract was concluded, and if an employer completes employment on the grounds of the expiration of the previous employment contract term, it constitutes dismissal and requires due reasons and procedures for dismissal pursuant to Article 23 of

(2) The key issue of the instant case is whether the Plaintiff constitutes “a teaching assistant under Article 14 of the Higher Education Act” under the proviso of Article 4(1)6 of the Fixed-term Act and Article 3(3)4(a) of the Enforcement Decree of the Fixed-term Act. As such, the issue is examined as to this issue.

The purpose of interpretation of the Act is to find a concrete validity within the extent that does not undermine legal stability. Furthermore, as a matter of principle, a reasonable interpretation must be made in response to the request for interpretation of the Act by additionally applying a systematic and logical interpretation method that takes into account the legislative intent and purpose, history of the enactment and amendment, harmony with the entire legal order, relationship with other statutes, etc. (see, e.g., Supreme Court en banc Decision 2011Da83431, Jan. 17, 2013).

(6) Article 15(4) of the Higher Education Act provides that “If a fixed-term worker is employed in the same manner as that of a fixed-term worker who is employed in the same manner as that of a school, the number of fixed-term worker who is employed in the same manner as that of a fixed-term worker under the proviso to Article 4 of the Enforcement Decree of the Higher Education Act shall be deemed to have been employed in the same manner as that of a fixed-term worker who is employed in the same manner as that of a fixed-term worker under Article 4 of the same Act.” Article 15(4) of the same Act provides that “If a fixed-term worker is employed in the same manner as that of a fixed-term worker who is employed in the same manner as that of a fixed-term worker, the number of fixed-term worker who is employed in the same manner as that of a fixed-term worker under the proviso to Article 4 of the same Act shall be deemed to have been employed for a reasonable period exceeding 1 of the Enforcement Decree of the Higher Education Act.”

Therefore, as seen earlier, the Plaintiff was in charge of public relations and planning as the public relations officer of the ○ University, and there was no fact that he/she concurrently conducted affairs or conducted research or research support affairs while completing his/her studies. Thus, solely on the ground that he/she was simply appointed as a teaching assistant, it does not constitute “a teaching assistant under Article 14 of the Higher Education Act” under Article 4(1)6 proviso of the Fixed-term Act and Article 3(3)4 Item (a) of the Enforcement Decree of the Fixed-term Act.

(3) Ultimately, since the Plaintiff had worked as a fixed-term worker for more than two years from March 1, 2008, whose labor contract was renewed as a result of the enforcement of the Fixed-term Act, until the date of the instant dismissal, the Plaintiff is a worker who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-Term Workers Act.

B. Whether the dismissal of this case is null and void

On the other hand, in order for the defendant to lawfully terminate a labor relationship with the plaintiff that is deemed to have concluded an employment contract through the notice of dismissal, there should be grounds for legitimate dismissal, i.e., grounds for the employment relationship to the extent that it is not possible to continue the employment relationship by social norms, and as seen above, the defendant dismissed the plaintiff merely on the ground that the term of the employment contract expires, so the dismissal in this case was made without justifiable grounds, and as long as the defendant contests this, there is

5. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Lee Jong-soo (Presiding Judge)