In case of the payment of temporary retirement under the premise of continuous service by an agreement between the employer and the employee, and of the retirement allowance between them, the validity of the contract for fidelity guarantee to the employee.

In cases where the employer and the employee have paid the corresponding retirement allowance while making a temporary retirement premised on continuous service according to the internal agreement between the employer and the employee, the retirement allowance is a collateral for the guarantor's right to indemnity of the fidelity guarantee obligation due to the act of the employee. Therefore, in relation to the guarantor, the above employee does not change the validity of the company once. The above fidelity guarantee contract is void as it is automatically terminated due to the fact of the employee's retirement.

Article 3 of the Fidelity Guarantee Act

Korea Shipping Corporation

Red netization

Seoul High Court Decision 85Na381 delivered on September 26, 1985

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

The grounds of appeal are examined.

Since a contract for fidelity guarantee is a contract between the employer and the fidelity guarantor with the purport of compensating the damages suffered by the employer due to the act of the employee, even before the expiration of the contract for fidelity guarantee, if the employment relationship terminates due to the termination of the employment contract with the employer, the contract for fidelity guarantee shall lose its validity from that time. The court below rejected the defendant's defense that the plaintiff was not liable for the damages suffered by the embezzlement of the amount as stated in its judgment during the period of the fidelity guarantee held by the non-party, and that the non-party was liable for compensating the damages to the plaintiff due to the intentional negligence in office in the plaintiff company for five years in the next five years, and that the non-party was aware of the embezzlement of the amount as stated in its judgment during the period of the fidelity guarantee held by the non-party, and that the non-party was dismissed due to the temporary termination of the contract as of July 14, 1981 and the non-party lost its validity.

However, according to the records, the non-party's request for the settlement of retirement pay to the plaintiff company due to the necessity of money, and the non-party's testimony, it can be acknowledged that the plaintiff accepted the request and had the non-party continue to work in the same grade and salary grade as the previous non-party, on the ground that the non-party delivered the retirement allowance to the non-party and entered the non-party on the following day. If the plaintiff provided the above non-party once retired from the plaintiff company and paid the corresponding non-party's retirement allowance, the retirement allowance can be deemed as a security room for the plaintiff's damage caused by the act of the non-party and the defendant's right to indemnity for the defendant's right to indemnity for the defendant's obligation. Thus, even if there was a temporary retirement and new company's disposal on the premise of continuous work according to the internal agreement with the plaintiff and the non-party, the above agreement has no effect on the part of the non-party's guarantor as to the defendant company, the non-party's claim for the above non-party's retirement will lose its validity.

As above, under the premise that the above disposition of retirement against the non-party is in form and it does not take effect, the court below's decision that recognized the defendant's fidelity guarantor's responsibility shall have affected the conclusion of the judgment by erroneous interpretation of the fact of temporary retirement, and there is no need to determine other grounds for appeal which are alleged to be erroneous.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-tae (Presiding Justice)