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(영문) 대법원 1991. 11. 12. 선고 91다12806 판결
[퇴직금][공1992.1.1.(911),90]
Main Issues

(a) The case holding that in case of a partial transfer of business, an employment contract relationship with all the employees engaged in the business concerned is comprehensively succeeded by agreement;

B. In the case of the above "A", the validity of the proviso clause that the previous continuous service period is not included in the number of years of service when the employees agreed to the comprehensive succession.

(c) Whether the consent to the suspension of continuous employment is given if a worker submits a resignation and receives a retirement allowance due to comprehensive succession of labor contract relations;

Summary of Judgment

A. Where Company A acquired part of its business from Company B, but agreed to comprehensively take over all assets and liabilities related to the business, claims, debts, and all employees engaged in the business as well as the rights and obligations of Company B, etc. Accordingly, if such employees continued to work, the labor contract relationship between Company B and its employees shall be deemed comprehensively succeeded to Company A in accordance with the above agreement.

B. In the case of the above "A", even if the former continuous service period included the proviso that the employee's retirement allowance calculation period should not be included in the retirement allowance calculation period of the succeeded company, this is an exception clause that limits the employee's vested rights concerning the continuous service period when comprehensively succeeding the previous employment contract relations. Thus, it is not binding upon the employee unless the employee's consent is given.

C. In the comprehensive succession of labor contract relations, there is room to view that the employee’s consent to the division of the continued employment if he/she submitted a resignation and received a retirement allowance by his/her own, but otherwise, if the succeeding company took the form of retirement and re-employment internally as a means for the payment of the retirement allowance to the employee, it cannot be deemed that the employee agreed to the division of the continued employment on the ground that he/she received the retirement allowance through such form.

[Reference Provisions]

(a)Article 41(a)(b) of the Commercial Code; Article 28(b) of the Labor Standards Act;

Reference Cases

B. Supreme Court Decision 87Meu2578 Decided May 10, 198 (Gong198,949) (Gong198,949) / (Gong1989,1343) Decided August 8, 1989. Supreme Court Decision 90Meu24311 Decided December 26, 1990 (Gong1991,625)

Plaintiff-Appellant

[Judgment of the court below]

Defendant-Appellee

Korea Electric Power Remuneration Co., Ltd., Counsel for the defendant-appellant

Judgment of the lower court

Seoul High Court Decision 90Na45108 delivered on March 22, 1991

Text

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

Reasons

The Plaintiff’s attorney’s ground of appeal is examined.

1. The court below, citing the reasoning of the judgment of the court of first instance, found that the defendant 1 and the defendant 2 continued to operate the above business based on the power generation and repair of the defendant 1 and the defendant 4. The defendant 1 and the defendant 1 and the defendant 4. The defendant 1 were established on March 27, 1984 and continued to operate the above business through the above 198. The defendant 1 and the defendant 4. The defendant 1 and the defendant 4. The defendant 1 and the defendant 1 and the defendant 4. The defendant 1 and the defendant 4. The defendant 1 and the defendant 1 and the defendant 4. The defendant 1 and the defendant 1 and the defendant 4. The defendant 1 and the defendant 4. The defendant 1 and the defendant 1 and the defendant 4. The defendant 1 and the defendant 1 were to receive the above retirement allowance from the above 198. The plaintiff 1 and the defendant 4. The defendant 1 and the defendant 1 were to receive the above 198.

2. However, it is clear that all rights and obligations of the non-party Corporation were comprehensively succeeded to the Korean Heavy Industries, even based on the facts of the above original judgment, since the non-party Corporation was merged into the Korean Heavy Industries, and the defendant company agreed to comprehensively take over only the power generation facility repair business part of the business from the Korean Heavy Industries, but the employees such as the plaintiff et al. have continued to work. Accordingly, the labor contract relationship between the Korean Heavy Industries and the employees such as the plaintiff et al. shall be deemed comprehensively succeeded to the defendant company in accordance with the above agreement, and it shall not be deemed that the labor contract relationship with the above company was terminated and a new labor contract relationship with the defendant company was commenced only with the fact that the plaintiff et al. received retirement allowances at the time of the above merger or business transfer.

However, when the comprehensive succession agreement with the Korean Heavy Industries was entered into, the defendant company inserted the proviso that the employee's retirement allowance calculation period should not be included in the number of years of service of the defendant company. However, since the defendant company comprehensively succeeded to the previous labor contract relations and set up an exception clause that limits the vested rights of the employee with respect to the period of service, it shall not be binding upon the employee unless the employee's consent is given, and even if examining the judgment of the court below and the records, there is no trace of examination and determination as to whether

In addition, the court below recognized that the plaintiff received and served a retirement allowance through the form of retirement and re-admission at the time of the above merger and the transfer of business. However, if the plaintiff submitted a resignation and received a retirement allowance by himself, it may be deemed that the plaintiff consented to the division of the continued employment. However, if it is merely an internal withdrawal and re-employment in the way of paying the retirement allowance to the non-party corporation or Korean Heavy Industries, it cannot be deemed that the plaintiff received the retirement allowance through such form and agreed to the division of the continued employment.

However, even if examining the record, the fact that the Plaintiff received an interim retirement allowance is recognized, there is no evidence to find whether the Plaintiff took the form of retirement and re-instigation or whether it was received by the Plaintiff’s voluntary resignation (the original judgment is that the Plaintiff voluntarily asserted that he received a retirement allowance by taking the form of membership and resignation during the process of a merger and a transfer of business, but the record alone does not show that the Plaintiff did not show such assertion).

Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to the continuous service period, which is the basis of the calculation of retirement allowances, and in the incomplete hearing and evidence judgment, which affected the judgment.

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)

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심급 사건
-서울고등법원 1991.3.22.선고 90나45108