[1] The standard for determining whether the State or a local government’s provision of jobs for public services falls under the proviso of Article 5(1)5 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 and Part-Time Workers

[2] In a case where Party A, who received a national subsidy from the Ministry of Education, Science and Technology in the form of a special subsidy, entered into an employment contract with Party B, etc. with Party B, through the head of an affiliated public school, as part of the “A-affiliated school parent’s common school (dedicated assistant) project,” which was maintained in its own budget, the case holding that there exists an exception to the restriction on the period of use of Party B, etc. as a fixed-term worker

[1] Public services provided by the State or a local government to citizens or residents have the inherent nature of services required socially due to its inherent nature. Therefore, where the State or a local government provides jobs for public services, whether it falls under the proviso of Article 5(1)5 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 same Act shall be determined by comprehensively taking into account various circumstances such as the background, purpose and character of the implementation of the relevant project, and the continuity

[2] The case holding that in a case where Party A’s local government’s employment contract with Party B, etc. with Party B, etc. through the public school head under its jurisdiction as part of “A’s “A-after school parents’ common school (dedicated assistant personnel) project” which was implemented with the National Treasury subsidies in the form of special subsidies from the Ministry of Education, Science and Technology, and continued with its own budget, the case held that the aforementioned project constitutes an exception to limiting the period of use of Party B, etc.’s employment as a part of the plan to promote measures to create jobs in the field of educational service and to create a vocational atmosphere against the deepening economic crisis, as part of the plan to create jobs in the field of education and job creation in the field of education and job creation in the field of education and job opportunities and to contribute to overcoming the economic crisis through the deepening economic crisis, and there is a temporary and temporary nature of job creation for Party B, etc. as a fixed-term worker.”

[1] Articles 3(3) and 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, Article 3(2)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [2] Articles 3(3) and 4 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

[1] Supreme Court Decision 2012Du18585 Decided December 26, 2012 (Gong2013Sang, 243)

Plaintiff 1 and five others (Law Firm Han, Attorneys Du-pop et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City (Attorney Jin-Jin, Counsel for defendant-appellant)

Busan High Court Decision 2013Na51902 decided May 1, 2014

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. Article 4(1) main text and Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) provides that where an employer employs a fixed-term worker for more than two years, such fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed-term period of time (Article 3(3) of the Fixed-term Workers Act). This provision also applies to the State or any local government’s institution (Article 3(1)5 of the Fixed-term Workers Act). However, Article 3(2)1 of the Enforcement Decree of the Fixed-term Act provides that where a job is offered in accordance with the government’s welfare policies and unemployment measures, the employer may employ a fixed-term worker more than two years. Accordingly, Article 3(2)5 of the Enforcement Decree of the Fixed-term Workers Act provides the relevant work to develop citizens’ vocational abilities, promote employment, and provide necessary services to residents in accordance with the Framework Act on Employment Policy, including the Employment Insurance Act.

B. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that there are grounds for exception to the restriction on the period of use of fixed-term workers in the "Employment Contract with the Bank of Korea (hereinafter "each of the employment contracts of this case") which the defendant entered into with the plaintiffs through the head of a public school under its control, on the ground that "the Government's welfare policy and unemployment measures" under Article 4 (1) 5 of the Fixed-term Project (hereinafter "the project of this case") continued in its own budget since 2012 after receiving government subsidies from the Ministry of Education, Science and Technology in the form of special subsidies.

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) The reasoning of the lower judgment and the record reveal the following facts.

(A) On June 2009, the Ministry of Education, Science and Technology, as part of the promotion plan for the creation of a plan for the plan for the creation of a desire to overcome unemployment against the deepening economic crisis, has each City/Do office of education implement the project of this case for two years under the subsidy of 100% of the project cost required for the project of this case, and the implementation of the project since 2011 was decided in accordance with the education finance of each City/Do office of education. Accordingly, each City/Do office of education under the metropolitan local government including the Defendant, including the Defendant, has 10% of the project cost of this case subsidized as a special subsidy and implemented the project of this case until 2011 (the period of special subsidy was extended by one year), and some offices of education such as Seoul Special Metropolitan City and Gyeonggi-do have finished the project from 2012, but some other offices of education including the Defendant, including the Defendant, continued the project with their own budget.

(B) The “plan for the introduction of the Koditer for parents of students in the aftermath School” notified by the Minister of Education, Science and Technology to the Defendant, etc. is not only “the establishment of infrastructure for the stable operation of the aftermath School and the mitigation of the work burden at school sites” but also “the contribution to overcoming economic crisis through the creation of school parents jobs.”

(C) As the demand of students in charge of after-school education increases and the number of teachers in charge of after-school education increases, it is an institution to support the increase in the number of after-school teachers in charge of after-school education and the improvement of their expertise. According to the above "Plan to introduce Koditer (dedicated personnel in charge)", the role or duty of parents in after-school schools (survey of demand for participation in after-school schools, preparation of time table, distribution of various promotional materials and survey materials and survey materials, etc.), management of after-school instructors (management of operation status such as out-of-school attendance management and confirmation of the status of school attendance management, student consultation with students and parents, etc.), and others (such as preparation of school operation log and management of after-school programs, etc.).

(D) When the Ministry of Education, Science and Technology requests the submission of data for the inspection of jobs related to after school and the results of the execution of the special subsidies related to the instant project, the Defendant submitted such data.

(E) The principals of public schools under the Defendant employed the Plaintiffs as a maximum of one year, depending on the Plaintiffs or school circumstances, and, at the time of renewal of their employment contracts, they drafted a new contract at each time, and also specified the renewal contract in a period of up to one year in several months. In addition, each of the instant employment contracts provides that the termination of the contract period shall be retired ipso facto from office due to the expiration of the contract period. While the grounds for termination of the contract during the contract period stipulate the termination of the contract period, they did not agree on the obligations of the Parties to renew the contract or the grounds for refusal of the contract extension.

(F) According to the “A plan for the introduction of the Koditer (dedicated assistant personnel) of parents in the after school” as seen earlier, the instant plan includes “the pertinent elementary school or parents of students in the vicinity of the school, as the parents of students in the after school,” in the qualifications to be selected as the Koditer for the after school.”

(2) In light of the relevant statutes and legal principles as seen earlier, the following circumstances revealed: ① the instant project was promoted for one purpose as part of the plan to promote the creation and expansion of jobs in the field of educational services and the deepening economic crisis; ② the Ministry of Education, Science and Technology has paid special subsidies for a limited period of two years at the time of the implementation of the instant project; and thereafter, the instant project is a temporary and temporary project for creating jobs; ③ the role or content of the after school parents’ educational achievement is of a complementary and cooperative nature; ④ the instant project was implemented through the government subsidy of 10% for fixed-term workers; ④ the Defendant’s implementation of the instant project constitutes a temporary and temporary project for creating jobs; ② the Defendant’s implementation of the instant project constitutes a temporary and temporary project for creating jobs; ③ the Defendant’s implementation of the instant project constitutes a temporary and temporary project for creating jobs; and ④ the Defendant’s implementation of the instant government subsidy of the instant case’s implementation of the Act on the Promotion of Employment and Labor, under the premise that there are no special reasons for the Defendant to receive the instant government subsidy from the National Education Office.

(3) Nevertheless, the lower court determined that each of the instant employment contracts did not have any exception to the restriction on the period of use of fixed-term workers on the grounds stated in its reasoning. It erred by misapprehending the legal doctrine on the grounds for exception to the restriction on the period of use of fixed-term workers under the proviso of Article 4(1)5 of the Fixed-term Workers Act and Article 3(2)1 of the Enforcement Decree

2. Regarding ground of appeal No. 3

According to the reasoning of the judgment below, the court below determined, based on its reasoning, that the plaintiffs' employer is a public corporation, a local government, which is the principal of the above public school and the principal of the educational affairs, under the "An employment contract with the parents of the students of the after school after the school" which was concluded with the principal of each public school under the defendant.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and there is no error by misapprehending the legal principles on employers under the above employment contract.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)