The case reversing the judgment of the court below which rejected the claim for nullification of dismissal of overseas employment workers as unlawful, and it erred in the misapprehension of legal principles as to the interest in confirmation, and by misapprehending the purport of the plaintiff's proposal, which affected the judgment below

The case reversing the judgment of the court below which rejected the claim for nullification of dismissal of overseas employment workers as unlawful, and it erred in the misapprehension of legal principles as to the interest in confirmation, and by misapprehending the purport of the plaintiff's proposal, which affected the judgment below

Articles 183 and 228 of the Civil Procedure Act, Article 27(2) of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1134 (Gong1991, 2003) (Gong1991, 2003) and 91Da12820 (Gong191, 2230) decided July 23, 1991

Plaintiff

Hyundai Construction Corporation

Seoul High Court Decision 91Na5664 delivered on April 23, 1991

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below

A. On June 10 of the same year, while the plaintiff was employed by the defendant company on May 23, 1982 and worked as the defendant company's employee as the defendant company's employee as the defendant company's employee as the defendant company's employee, the defendant returned to the Republic of Korea after having been injured by the right pition while working as the defendant's employee on June 10 of the same year, and the defendant dismissed the plaintiff on August 1 of the same year without just cause. As to the plaintiff's claim for confirmation of invalidity of dismissal, the plaintiff's claim for confirmation of invalidity of dismissal is aimed at restoring the employment relationship itself by confirming the invalidity of dismissal, that is, the existence of an employment relationship between the worker and the employer, and it can be recognized that the plaintiff was employed by the defendant company on May 23, 1982, and therefore the plaintiff lost the status of employee as the defendant company on June 22, 1983. Thus, even if the plaintiff's dismissal was claimed as such, the plaintiff's claim for confirmation of invalidity of the remaining wage period is rejected.

B. As to a claim for wages, the Plaintiff wishes to return to Korea to undergo an operation after being injured under the above circumstances, on the ground that it is inevitable for the Plaintiff to have retired from Korea without having to submit a resignation, the Plaintiff submitted to the Defendant company for resignation on August 1, 1982, and the submission of the above private staff by coercion by the Defendant company is null and void. Therefore, the above dismissal of the Defendant company constitutes de facto dismissal, in violation of Article 27(2) of the Labor Standards Act stipulating the prohibition of dismissal during the period of suspension of work, and the Defendant company was not obliged to return to Korea from the Defendant company for the treatment of the above wages from August 1, 1982 to November 30, 190, the total amount of wages from the above dismissal date, 73,339,560 won, which were the remaining period of the above dismissal date, and the Plaintiff cannot return to Korea from the Defendant company’s disease to the Defendant company for treatment and delayed payment for the above work. However, the Plaintiff concluded a labor contract with the Defendant company and its employees within six months after the period expired.

2. However, if the defendant company dismissed the plaintiff on August 1, 1982, and the dismissal is null and void, the plaintiff's failure to provide labor thereafter is not attributable to the defendant company. Thus, the court below should first determine whether the defendant company dismissed the plaintiff on August 1, 1982, and if the defendant company dismissed the plaintiff, it should determine the validity of the plaintiff's claim for wages. Accordingly, the court below should determine the validity of the plaintiff's claim for wages.

3. In addition, according to the court below's reasoning, the dismissal made by the defendant on the ground that the plaintiff could not be dismissed during the period of suspension of business for medical treatment due to injury and injury inflicted on the plaintiff in this case. The employment relationship between the plaintiff and the defendant company continues to exist after June 22, 1983, and it cannot be said that the plaintiff is seeking nullification of dismissal in order to assert that the employment relationship between the plaintiff and the defendant company continues to exist until June 222, 1983. Further, the plaintiff dismissed the plaintiff on August 1, 1982 and claimed the above wage on the premise that this dismissal is null and void. The issue of whether the dismissal is null and void can be an effective and appropriate means to resolve disputes over the legal relations which are the basis of the claim for the wage in this case, and therefore there is no benefit to seek confirmation.

4. Therefore, the court below erred by misapprehending the legal principles as to the interest in confirmation, by misunderstanding the purport of the plaintiff's assertion, which led to an incomplete deliberation, and omitting the reasoning and judgment. The grounds for appeal are with merit within this scope.

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 Lee Jae-chul (Presiding Justice)