[1] Requirements for consent to unilaterally change the content of the existing working conditions by the revision of the rules of employment

[2] The case holding that the revised rules of employment with the consent of the labor union consisting of a majority of workers naturally applies to the non-labor union members who did not follow individual consent procedures

[3] In a case where the ground for ipso facto retirement stipulated in the rules of employment, etc. constitutes the ground for automatic extinguishment of a labor relationship, whether the labor relationship is terminated naturally due to the occurrence of such ground (affirmative), and the legal nature of the procedure for retirement (=notification of concept

[4] Whether a worker who attains retirement age has the right to demand the extension of retirement age (negative) and the standard for determining the legitimacy of the measure that does not permit the extension of retirement age

[1] Since the employer has the authority to prepare and revise the rules of employment as a matter of principle, the employer may prepare and revise the rules of employment according to its intent. However, in order to unilaterally amend the existing rules of employment to disadvantage the workers, the consent shall be required in accordance with the collective decision-making method of a group of workers under the previous rules of employment. The consent method refers to the labor union if there is a labor union consisting of a majority of the workers, and a majority of the workers' meeting if there is no such labor union, and the majority of the workers here refers to the majority of the workers group under the existing rules of employment.

[2] The case holding that the above amendment is legitimate and effective, since it is not qualified to join a trade union at a certain level or at a certain level, but it is naturally applicable to an employee subject to the existing retirement regulations regardless of his/her individual consent, in case where the existing retirement regulations of the rules of employment are amended and the consent of the trade union consisting of a majority of the workers who were subject to the existing retirement regulations.

[3] In a case where an employer provides that a certain cause, such as the rules of employment, etc., shall be the grounds for ipso facto retirement or dismissal, and the procedure differs from ordinary dismissal or discipline, and the reason for ipso facto retirement appears to be the grounds for automatic extinguishment of the labor relationship, such as the death, retirement age, and expiration of the term of the labor contract, insofar as the rules of employment that stipulate the above reasons for ipso facto retirement is valid, the labor relationship is terminated as a matter of course on the ground of the occurrence of the reasons or the prescribed date, and the automatic termination of the labor relationship such as retirement age, is merely a “notification of concept,” and does not constitute a new formative act, such as a “decure disposition,” which

[4] Whether an employer continues to maintain a labor relationship with a worker who has reached the retirement age stipulated in the rules of employment, etc. by extending the retirement age or by any other way, barring special circumstances, the employer’s right to demand the extension of the retirement age belongs to the pertinent worker, and thus, cannot be deemed as having the right to demand the extension of the retirement age. The legitimacy of the measure that the employer did not allow the extension of the retirement age to the relevant worker shall be determined on the basis of whether the employer’s act violates the contents or purport of the provisions of the law and the rules of employment, etc. However, it cannot be readily concluded that the extension of the retirement age is unreasonable solely on

[1] Article 94 of the Labor Standards Act / [2] Article 94 of the Labor Standards Act / [3] Articles 23 and 93 of the Labor Standards Act / [4] Articles 23 and 93 of the Labor Standards Act

[1] Supreme Court Decision 91Da17542 delivered on September 24, 1991 (Gong1991, 2602 delivered on April 10, 1992) Supreme Court Decision 2005Da21494 Delivered on November 10, 2005 / [3] Supreme Court Decision 94Da401 delivered on April 11, 1995 (Gong1995Sang, 1829 delivered on October 24, 197), Supreme Court Decision 97Nu1686 delivered on September 24, 197 (Gong1997Ha, 3662 delivered on April 29, 197), Supreme Court Decision 97Nu1989 delivered on September 24, 197 (Gong1997Ha, 3662 delivered on November 19, 197)

Plaintiff (Law Firm Lee, Attorneys Song Byung-kin et al., Counsel for the plaintiff-appellant)

Future Life Insurance Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na6064 decided Nov. 16, 2007

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

The grounds of appeal are examined.

1. As to the second ground for appeal

As a matter of principle, an employer may prepare and revise the rules of employment in accordance with his/her intent. However, in order to unilaterally amend the existing rules of employment to disadvantage workers due to the amendment of the rules of employment, consent shall be required by collective decision-making method of a group of workers under the previous rules of employment. The consent method requires the labor union if there is a labor union consisting of a majority of workers, and the majority of the workers if there is no such labor union (see Supreme Court Decisions 91Da17542, Sept. 24, 1991; 91Da37522, Apr. 10, 1992; 91Da37522, Apr. 10, 1992; 205Da21494, Nov. 10, 2005).

In full view of the adopted evidence, the lower court determined that the existing retirement regulations, one of the rules of employment of the Defendant Company, provide that “the retirement age shall be 58 years (Article 2 subparag. 2); and that “the retirement age may be extended within a period not exceeding one year from the date of the retirement age if deemed necessary even for the employees who reached the retirement age (Article 3(2)2).” However, when the Defendant Company revised this on May 24, 2004, “the retirement age shall be 55 years (Article 2 subparag. 2),” and “the retirement age may be extended within a period not exceeding three years from the date of the retirement age if deemed necessary even for the employees who reached the retirement age (Article 3(2)2),” the Defendant Company obtained the consent of the labor union consisting of a majority of its employees who were subject to the existing retirement regulations regarding such amendment, and the Plaintiff was not entitled to the retirement of 20 years or more as the head of the Defendant Company (Article 10-2).

However, it is difficult to accept the judgment of the court below.

In light of the above legal principles, as recognized by the court below, insofar as it is clear that a trade union which has consented to the amendment of the existing retirement regulations consists of a majority of the employees of the defendant company, the amendment of the retirement regulations on May 24, 2004 of the defendant company, regardless of whether the plaintiff et al. consented individually, shall be lawful and effective, and such regulations shall be applied to the plaintiff as a matter of course.

Nevertheless, the judgment of the court below that the retirement provision revised as of May 24, 2004 as of May 24, 2004 cannot affect the plaintiff, is erroneous in the misapprehension of legal principles as to the amendment of the rules of employment disadvantageous to the worker, which affected the conclusion of the judgment. The ground of appeal as to

2. As to the grounds of appeal Nos. 1, 3, and 4

If an employer provides that a certain cause has occurred in the rules of employment as a ground for ipso facto retirement or a disciplinary action, and the reason for ipso facto retirement appears to be a ground for automatic termination of labor relations, such as the worker’s death, retirement age, and expiration of the term of labor contract, as long as the rules of employment that stipulate the above ground for ipso facto retirement is valid, ipso facto termination of labor relations shall be deemed to be the occurrence of the cause or the prescribed date (see, e.g., Supreme Court Decisions 94Da4011, Apr. 11, 1995; 2007Du2067, Oct. 25, 207; 2007Du2067, Oct. 25, 207) and the disposal of retirement due to automatic termination of labor relations, such as retirement age, is merely merely an “notification of concept” and does not constitute a new formation act, such as a “disposition that loses the worker’s status” (see, e.g., Supreme Court Decisions 97Nu1697Nu197.

Meanwhile, the principle of trust and good faith under the Civil Act refers to abstract norms that a party to a legal relationship shall not exercise his/her right or perform his/her duty in a manner that violates the principle of trust and good faith, taking into account the other party’s interest, and thus, in order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, the other party has to have offered good faith to the other party or have good faith in an objective view, and the exercise of rights against the other party’s trust should reach an irrecoverable level in light of the concept of justice (see, e.g., Supreme Court Decisions 91Da3802, Dec. 10, 1991; 91Da3802, Dec. 10, 1991; 2000Da396969, Apr. 26, 198; 2005Da196597, Apr. 196, 209).

In full view of the adopted evidence, the court below acknowledged that the plaintiff was dismissed on December 31, 1997 while he worked as the head of the defendant company on February 5, 1951, and thereafter, the plaintiff was reinstated to the defendant company on October 10, 2003 upon winning a favorable judgment in a lawsuit seeking confirmation of dismissal invalidation, but was dismissed on May 24, 2004 in accordance with the retirement rules amended as of May 28, 2004, on the ground that he reached the age of 55, the plaintiff reached the retirement age. The court below decided that the plaintiff was disadvantageously applied the retirement rules to the plaintiff, etc. to the plaintiff, etc. on February 28, 2006, on the ground that the plaintiff et al. reached the retirement age of 55.

However, it is difficult to accept the judgment of the court below for the following reasons.

First of all, even after examining the evidence adopted by the court below in detail, there is no evidence to find that the defendant company revised the retirement regulations on May 24, 2004, as a tool to make the plaintiff et al. to retire early. Furthermore, as seen earlier, as long as the amendment of the retirement regulations on May 24, 2004 was lawful and effective, all employees subject to such revised retirement regulations are subject to only the revised retirement regulations on the ground that they naturally retire when they reach 55 years of age. However, there is no ground to deem that the defendant company applied the revised retirement regulations on the part of the plaintiff et al., or agreed on the part of the plaintiff et al., which is legally binding between the labor union.

In addition, in light of the above legal principles, the retirement disposition against the plaintiff of the defendant company on February 28, 2006 constitutes notification of the concept of public notification of the ground and time of retirement which naturally occurred under the law, and it does not constitute a new formative legal act such as dismissal disposition. In light of the form and content of revised retirement regulations, Article 3 (2) 2 of the above Act does not constitute the authority provision that the retirement age may be extended within a certain scope when the defendant company deems it necessary even for employees who reach the retirement age and retire automatically. Accordingly, it cannot be deemed that the pertinent employee who reached the retirement age has the right to demand the extension of retirement age against the defendant company, unless there are special circumstances such as the extension of retirement age individually to the plaintiff company. Thus, even if the defendant company did not extend retirement age of the plaintiff who reached the retirement age of 55, which is stipulated in the retirement regulations, even if it did not violate the plaintiff company's legal interests and interests, it cannot be deemed that the plaintiff company did not have consented to the extension of retirement age of the plaintiff company's.

Nevertheless, the court below held that the plaintiff's retirement from different opinions reached the age of 55 according to the retirement regulations amended as of May 24, 2004, constitutes a de facto dismissal of the defendant company, and thus null and void as it violates the good faith principle. Thus, the court below erred by misapprehending the legal principles as to misunderstanding of facts in violation of the rules of evidence, or as to ipso facto retirement due to retirement, extension of retirement age due to retirement age, and the principle of trust and good faith, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)