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(영문) 부산고등법원 2017.04.19 2016나57390
부당이득금반환
Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasons why the court accepted the judgment of the court of first instance for the instant case are as stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments to the pertinent part as to the claims asserted by the Plaintiff. Thus, it is citing it as it is in accordance with the main sentence of Article 4

2. Additional matters to be determined;

A. The part prohibiting collective action of non-regular workers among employment contracts concluded between the Plaintiff and the Defendant is null and void, and in such a case, the entire contract is null and void.

Therefore, the Defendant is obligated to return to the Plaintiff unjust enrichment equivalent to the amount obtained by deducting the total amount of the annual wages and retirement allowances calculated based on the Plaintiff’s remuneration in 2010 from the total amount of the ten-year wages and retirement allowances calculated based on the remuneration of the regular workers in 2010.

B. 1) In the case of an employment contract that was concluded after January 1, 2005, there is no evidence to acknowledge that the Plaintiff and the Defendant included the part prohibiting collective action of non-regular workers in the employment contract that was concluded after January 1, 2005. Therefore, the Plaintiff’s assertion that the employment contract that was concluded after January 1, 2005 was null and void cannot be accepted. 2) In the case of an employment contract that was concluded before January 1, 2005, the Plaintiff’s argument that the employment contract was concluded after January 1, 2005 should be added to the arguments in the evidence Nos. 1 and 2, the Plaintiff and the Busan rolling stock rolling stock maintenance shop prepared on January 2, 2001, and Paragraph 6 of Article 6 of the employment contract that “after January 2, 2001, it shall be governed by the Rules No. 19 and No. 305 of the Busan rolling stock maintenance rolling stock that were separately stipulated in the above employment contract.”

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