[1] Whether separate rules of employment applicable to part of workers can be prepared in one workplace according to the characteristics of occupation (affirmative)

[2] In a case where a new employment contract is concluded with a new employee on the premise that the former employment rules existed with respect to an existing employee, whether the part of the employment contract which determined the employment conditions under the former employment rules becomes null and void naturally (negative)

[1] Article 94 of the former Labor Standards Act (amended by Act No. 5305 of March 13, 1997) / [2] Article 98 of the former Labor Standards Act (amended by Act No. 5305 of March 13, 1997)

[1] Supreme Court Decision 95Nu15698 delivered on February 27, 1996 (Gong1996Sang, 1146)

Plaintiff 1 and 19 others (Law Firm Samil, Attorney Song-hae, Counsel for the plaintiff-appellant)

School Foundation Yong-Nam Institute (Law Firm Barun, Attorneys Park Jae-sik, Counsel for defendant-appellant)

Daegu High Court Decision 2004Na7232 decided Nov. 8, 2006

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In light of the records, although retirement benefits under the retirement benefits provision of this case established for the purpose of determining matters concerning the payment of retirement benefits at the time of retirement or death of a teacher of a private school established and operated under the defendant corporation, as long as the contents of working conditions have already been already implemented while the provisions on retirement benefits have already been implemented since the enactment and implementation of the Private School Teachers' Pension Act (Act No. 2650 of December 20, 1973), the provisions on retirement benefits still maintain the nature as the rules of employment. Unlike the previous provisions of the former Private School Act (amended by Act No. 3812 of May 9, 1986), the former Private School Act (amended by Act No. 3812 of May 3, 1986) excludes the authority of the board of directors to deliberate and decide on the matters concerning the budget and settlement of accounts of the relevant university's educational institution from the board of directors. Thus, the decision of the court below is justified in the misapprehension of legal principles as to the retirement benefits provision of this case as its ground for appeal.

2. Furthermore, the lower court rejected the Defendant’s assertion on the grounds that the instant retirement allowance provision was amended only after the resolution of the board of directors of the Defendant corporation, and that there is no room for application of the retirement allowance provision after the amendment.

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

Article 94 of the former Labor Standards Act (amended by Act No. 5305, Mar. 13, 1997) provides that "the rules of employment under Article 94 of the former Labor Standards Act (amended by Act No. 5305, Feb. 27, 1996)" refers to the name of the employer, if the rules of employment concerning working conditions, such as service regulations, wages, etc., are included. The employer does not have to prepare only one rules of employment that are uniformly applied to all workers belonging to the same workplace, but can establish separate rules of employment that are applied to part of workers according to the characteristics of the working conditions, the form of work, and the type of work. In this case, the total number of the several rules of employment is one of the rules of employment under

Meanwhile, Article 98 of the former Labor Standards Act provides that a labor contract that provides for working conditions which fall short of the standards stipulated in the employment rules shall be null and void, and in such a case, the part which is null and void shall be based on the standards stipulated by the employment rules. However, in a case where an employer concludes a new employment contract with a new employee on the premise that the former employment rules apply to the existing employee, it shall be reasonably determined by taking into account all the circumstances such as the purpose of the employment rules, the background leading up to the preparation or amendment of the new employment rules, the parties’ intentions, specific practices of the relevant workplace, or the existence of a collective agreement with the new employee, and thus, the part of the employment contract that provides for the new employee shall not be deemed null and void as a matter of course, on the ground that Article 98 of the former Labor Standards Act applies unilaterally and uniformly to the new employee.

Examining the record in light of the above legal principles, since the defendant corporation paid retirement benefits under the former Private School Teachers' Pension Act (amended by Act No. 6124 of Jan. 12, 200) and retirement allowances under the rules of employment, "retirement allowances regulations" to the existing teachers, it is excluded from the application of the existing rules of retirement benefits only to the newly appointed teachers due to financial difficulties; however, in the future, the defendant corporation shall pay retirement benefits under the former Private School Teachers' Pension Act; accordingly, the president of Yong-Namnam University, which is affiliated with the defendant corporation, after deliberation and resolution by the Financial Committee on February 8, 1983, the above contents of the new rules of retirement benefits are not known to the existing teachers including the plaintiffs, and there is no need to apply the new rules of retirement benefits to the newly appointed teachers under the above provisions of the Act on March 1, 1983, and there is no change in the new rules of retirement benefits from the newly appointed teachers with the purpose of raising funds necessary for the new retirement benefits under the existing provisions of the Act.

If the court below should have rejected the plaintiffs' claim for interim settlement of retirement allowance by applying the retirement allowance provision after the amendment, but it should have applied the retirement allowance provision before and after the amendment, which affected the conclusion of the judgment by misapprehending the legal principles on employment rules and employment contracts and failing to exhaust all necessary deliberations.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)