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(영문) 서울고등법원 2017.10.27 2016누73537
부당해고구제재심판정취소
Text

1. All appeals filed by the Defendant and the Intervenor are dismissed.

2. The costs of appeal are assessed against the Defendant and the Intervenor joining the Defendant.

Reasons

1. The reasons why the court should explain this part of the decision by the reexamination of this case are as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's summary of the plaintiff's assertion asserts that the notice of termination of the labor relationship of this case does not constitute an unfair dismissal for the following reasons, and thus, the decision of this case was unlawful.

1) The Act on the Protection, etc. of Fixed-Term and Part-Time Workers Excluding the Application of the Maturity doctrine (hereinafter “ Fixed-Term Act”)

A) After the enforcement of the Act, an employer may employ a fixed-term worker without any justifiable reason for up to two years. On the other hand, if the total period of employment exceeds two years, a fixed-term worker is recognized as an employee without any fixed-term employment contract. Therefore, if a new fixed-term employment contract is recognized as a renewal right for a labor contract after the enforcement of the Act, the employment relationship is expected to be terminated within two years. On the other hand, if a fixed-term worker is recognized as a renewal right for a labor contract even after the enforcement of the Act, it would have the legal effect of converting a fixed-term worker into an employee with no fixed-term employment contract in fact in combination with Article 4(2) of the Act on the Fixed-term and Fixed-Term Workers, thereby unfairly infringing on the employer’s freedom to conclude a labor contract. Therefore, the legal principle of the “fixed-term employment right” recognized in the precedents after the enforcement of the Act on the Fixed-Term Workers, there is no room to recognize the legitimate expectation right for the renewal of a labor contract.

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