[1] Criteria for determining whether an employer’s dismissal from office constitutes dismissal

[2] The case holding that it is not a dismissal under the Labor Standards Act for an employee to submit a written resignation to the company according to the implementation of the desired retirement system and to dismiss it by the company

[1] In a case where an employer has received a written resignation from an employee and completed an employment contract by taking the form of a voluntary dismissal to accept it, if the employer had an employee without an intention to resign prepare and submit a written resignation without any choice, it shall be deemed that the employment contract is terminated by the employer’s unilateral intent, and thus, it shall be deemed that the employment contract relationship between the employer and the employee is terminated by accepting the declaration of intention to resign in accordance with the submission of the written resignation, and thus, the employer’s dismissal of the employee’s member shall not be deemed dismissal

[2] The case holding that it is not a dismissal under the Labor Standards Act for an employee to submit a written resignation to the company according to the implementation of the desired retirement system and to dismiss it by the company

[1] Article 107 of the Civil Act, Article 30 of the Labor Standards Act / [2] Article 107 of the Civil Act, Article 30 of the Labor Standards Act

[1] Supreme Court Decision 95Nu7765 delivered on July 30, 1996 (Gong1996Ha, 2684) Supreme Court Decision 97Da12006 delivered on August 29, 1997 (Gong1997Ha, 2859) Supreme Court Decision 2000Da51919, 51926 delivered on January 19, 2001 (Gong2001Sang, 5199)

Plaintiff 1 and one other (Law Firm Chang-chul, Attorney Lee So-young, Counsel for the plaintiff-appellant)

AC Cement Co., Ltd. (Attorney Lee Won-ap et al., Counsel for defendant-appellant)

Seoul High Court Decision 2001Na61861 delivered on September 26, 2002

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

In a case where an employer has received a written resignation from an employee and completed an employment contract by taking the form of dismissal from a worker who accepts it, if the employer had an employee who has no intention to resign prepare and submit a written resignation without any choice, it shall be deemed that the employment contract relationship is terminated by the unilateral intent of the employer. However, unless otherwise, the employment contract relationship between the employer and the employee is terminated by the agreement termination by accepting the declaration of intention of resignation following the submission of the written resignation (see Supreme Court Decision 2000Da51919, 51926, Jan. 19, 2001).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and decided that the defendant company would give preferential treatment to those who want to retire through prior consultation with the labor union, and decided to dismiss the plaintiffs' voluntary retirement based on the plaintiffs' explicit intent, and in that process, it is nothing more than actively recommends the plaintiffs to be included in the person subject to layoff when considering the standard of reorganization such as the applicable age or the continuous period of employment when implementing the voluntary retirement system, it is hard to view that the plaintiffs submitted a written resignation without any inevitable reason as a result of coercion of the defendant company despite the absence of the plaintiffs' intention of resignation. On the other hand, even if the plaintiffs did not receive the recommendation of the voluntary retirement, it is reasonable to view that the plaintiffs violated the legal principles as to the plaintiffs' employment contract and the employment contract as stated in the ground of appeal, and it is not reasonable to view that there was no error in the misapprehension of the legal principles as to the plaintiffs' employment contract and the employment contract as a result of which the plaintiffs asserted that the plaintiffs were dismissed.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)