In a case where Party A sought a confirmation of retirement age against Party B when Company B calculated the retirement age based on the date of birth stated by Party A at the time of employment of employees despite Party A’s correction of date of birth and resident registration number on the family relations register, the case holding that there was an implied agreement between Party A and Party B that the date of birth for calculating retirement age shall be deemed the actual date of birth.

In a case where Company A sought a confirmation of retirement age against Company B when Company B calculated the retirement age based on the date of birth stated by Company A at the time of employment of employees, the case holding that: (a) Company B had an implied agreement between Company A and Company B to regard the date of birth as the actual date of birth on the resident registration basis of the applicant at the time of employment; and (b) the retirement age system, which uniformly terminates employment contract on the ground that the employee reaches a certain age, is reasonable based on the actual age that can reflect the physical and mental ability of the employee, in principle, on the grounds that the retirement age system, which uniformly terminates on the ground that the employee reaches a certain age, is to be based on the worker’s physical and mental ability.

Article 250 of the Civil Procedure Act

Plaintiff (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Korea hydroelectric Power Co., Ltd. (Government Law Firm Corporation, Attorney Cho Jae-sik, Counsel for defendant-appellant)

November 26, 2013

1. We affirm that the Plaintiff’s retirement age between the Plaintiff and the Defendant is up to March 31, 2016.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On April 14, 1980, the Plaintiff was affiliated with the Korea Electric Power Corporation. Under the Act on the Promotion of Restructuring the Electric Power Industry, the Defendant was divided into the Korea Electric Power Corporation on April 2, 2001, and the Defendant succeeded to employment with the Defendant, thereby serving as an employee belonging to the Safety Planning Team of the Korea Electric Power Corporation.

B. At the time of the Plaintiff’s entry, the date of birth on the family register was registered as “○○○, 1955,” and the Plaintiff stated that his date of birth was “○○, 1955,” and the Korea Electric Power Corporation and the Defendant have managed the personnel management of the Plaintiff based on this.

C. On July 2, 2012, the Plaintiff filed an application for correction of the registry with the Gwangju Family Court’s actual date of birth different from that of his/her actual date of birth, and the said court rendered a decision that the Plaintiff’s date of birth on the Plaintiff’s family relations register should be “△△△△△△△△△, 1957.” Accordingly, on July 5, 2012, the Plaintiff’s date of birth on the Plaintiff’s family relations register was corrected to “△△△, 1957. △△△△△△,” and accordingly, on July 9, 2012, the Plaintiff’s resident registration number was corrected to “500○-○**************” from “57 △△△△△△△△△△,” and the Plaintiff’s resident registration number was corrected to “57 △△△△△

D. After that, around July 2012, the Plaintiff requested the Defendant to correct the Plaintiff’s resident registration number and the scheduled date of retirement under the Plaintiff’s personnel records in accordance with the above changed date of birth, etc. The employee in charge of the Defendant’s personnel management corrected the Plaintiff’s resident registration number in the same month’s computerized personnel records as above, and the scheduled date of retirement was also corrected from “ September 30, 2013” to “ March 31, 2016.”

E. However, around July 2013, the Defendant re-issued the Plaintiff’s resident registration number and the scheduled date of retirement due to the Plaintiff’s personnel record as indicated in the foregoing 1.C. as the resident registration number before correction and the scheduled date of retirement due to the scheduled date of retirement.

F. The Plaintiff asserted that the scheduled date of retirement falls under March 31, 2016 on the basis of the corrected date of birth, and filed the instant lawsuit on September 6, 2013. On September 12, 2013, the Defendant amended the Personnel Management Regulations (Article 140) stating that “The date of birth on the personnel record and the date of retirement shall not be changed even if the date of birth is corrected due to a court ruling or an ex officio correction by the administrative office, etc.)” as follows.

G. The main contents of the Defendant’s rules of employment and personnel management regulations (amended by Presidential Decree No. 2010, Sept. 12, 2013) related to the instant case are as follows.

Rules of Employment

Article 13 (Report) An employee shall promptly report any change in his/her former domicile, transshipment, name, or other personal records.

Article 59 (Regular Retirement Age) (1) The retirement age of an employee shall be 58 years of age.

Article 61 (Time of Retirement) (1) The time of retirement under the provisions of Article 59 shall be March 31 and September 30: Provided, That only those who wish to do so may be the basis of the date of birth.

Personnel Management Regulations (amended by Presidential Decree No. 2390, Sept. 12, 2013)

Article 139 (Keeping of Personnel Records) (1) For employees, one copy of each document required for employment and a statement of direct nuclear record shall be prepared at the time of employment and kept in the personnel department and the affiliated department.

(2) The original of required documents under paragraph (1) shall be permanently kept by the personnel management department.

When there is any change in the full entries in the self-record sheet of the staff under Article 140 (Management of Direct Nuclear Matters), it shall be submitted to the head of the competent department in charge of passage through the head of the place of business and personnel affairs, along with evidential documents

Personnel Management Regulations (amended on September 12, 2013; hereinafter referred to as "Revised Personnel Management Regulations")

When there is a change in the full entries in the personnel's self-record sheet under Article 140 (Management of Nuclear Matters) the person in charge of nuclear affairs shall submit a document attached to attached Table 14 to the head of the office via the head of the department in charge of personnel affairs, along with documentary evidence: Provided, That even if the date of birth is corrected due to a court's decision or ex officio correction of an administrative office

Addenda

(1) This provision shall enter into force on the date of its promulgation.

(2) The amended provisions of Article 140 shall also apply to those whose date of birth was corrected before the enforcement date of this Regulation, but whose date of birth and date of retirement on personnel records have not been changed.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff is the actual date of birth of the Plaintiff, △△△△, 1957, and despite the Plaintiff’s correction of the date of birth by the court’s decision on △△△ on 1955, the Defendant calculated the retirement age on the basis of the date of birth as stated at the time of employment, disregarding the Plaintiff’s actual date of birth and disregarding the Plaintiff’s actual date of birth, despite the Plaintiff’s correction of the date of birth to △△△△△△△△ on 1957. The Plaintiff’s retirement age was erroneous, asserting that the Plaintiff’s retirement age was calculated on March 31, 2016

B. Defendant’s assertion

The defendant, under the proviso of Article 140 of the revised Personnel Management Regulations as of September 12, 2013, even if the date of birth is corrected due to the court's judgment or ex officio correction of an administrative office, etc., the date of birth and the date of retirement on the personnel records cannot be changed. These provisions also apply to the plaintiff, and there are explicit and implied agreements between the plaintiff and the defendant to follow the date of birth indicated at the time of employment regarding the date of birth which serves as the basis for calculating the retirement age. Thus, the scheduled date of retirement of the plaintiff shall be September 30, 2013, which is calculated on the basis of the date of birth indicated in the original personnel record, notwithstanding the correction of the date of birth on the family relations register.

3. Determination

A. The premise for judgment

First of all, whether the revised personnel management regulations apply to the Plaintiff is the premise for the determination of the Plaintiff’s assertion.

As seen earlier, the proviso of Article 140 of the former Regulations on Personnel Management provides that “The date of birth and the date of retirement on the personnel record shall not be amended even if the date of birth is revised by the court ruling or ex officio correction of the administrative office.” Paragraph (2) of the Addenda provides that “The above provision shall also apply to those whose date of birth was corrected before the date of entry into force of the above provision, but whose date of birth and the date of retirement on the personnel record were not revised by the date of entry into force of the above provision.” However, the above provision is revised after July 2012 after the correction of the Plaintiff’s date of birth and the resident registration number on the Defendant’s personnel record, etc., the above provision on personnel management record cannot be deemed as an amendment of the advantageous rules of employment. Thus, the above provision on the personnel management record cannot be deemed as an amendment to the extent that it infringes upon workers’ rights or vested interests. Therefore, the above provision on the Plaintiff’s ground that the above revised regulations on the personnel management record and the date of birth should not be applied to the Plaintiff’s new rules on personnel management record.

B. Relevant legal principles

1) The family relation register is a public document evidencing a person's family relation, and barring any special circumstance, entry in the family relation register is legally legitimate and its entries are presumed to conform to the truth. As seen earlier, insofar as the date of birth in the Plaintiff's family relation register was corrected as of July 5, 2012 after the Plaintiff received the permission for correction of the family relation register from the Gwangju Family Court, the date of birth of the Plaintiff shall be presumed to be △△△△△△, which was corrected as such.

2) Unlike new appointment of public officials, in a private employment contract, where an employee and an employer determine elements affecting labor relations, such as the conditions or contents of labor, the principle is that it may be determined according to the free will of the parties under the principle of private autonomy unless the employer violates the mandatory provisions of the Labor Standards Act, etc. For this reason, if there are provisions in the relevant Acts and subordinate statutes, they shall be followed, and if there are no such provisions, they shall be governed by the rules of employment or collective agreement of the relevant company, and if there are no such provisions in the rules of employment or collective agreement,

3) However, with respect to the meaning of the date of birth that serves as the basis for calculating the retirement age, the Civil Act and the Labor Standards Act do not specifically provide for the meaning of the date of birth, and Article 59 of the Rules of Employment of the Defendant, which was enforced around July 2012, only stipulates that “the retirement age of employees shall be 58 years old,” and there are no other references as to the date of birth that serves as the basis for calculating the retirement age in the rules of employment, personnel management regulations, etc.,

4) Therefore, in the instant case, the Plaintiff’s retirement age cannot be uniformly determined on the basis that there is no explicit relevant statutes or rules of employment regarding the date of birth, which serves as the basis for calculating the Plaintiff’s retirement age, or that the retirement age ought to be calculated on the basis of the actual date of birth, or on the basis of only the date registered on the public record, and whether there was an explicit or implied intent between the parties to such determination should be determined.

C. Determination based on explicit or implied concurrence

Therefore, the following circumstances, which can be seen by comprehensively considering the purport of the entire arguments and the purport of the arguments, i.e., the defendant prepared personnel records based on the age based on the resident registration date from the applicant at the time of employment. ② Article 13 of the Rules of Employment of the defendant requires employees to promptly report when there is a change in the full entries in the employee’s self-record records, and Article 140 of the Rules of Employment requires employees to submit documents to the head of the personnel management department along with evidential documents. The changes in each of the above provisions include changes in the date of birth, which serves as the basis for calculating the retirement age. It is reasonable to deem that the changes in the above regulations also include changes in the number of days of birth, which are the basis for calculating the retirement age. ③ In fact, the defendant did not provide for the deliberation procedure on the correction of the personnel records following the above report or the submission of documents. ③ Based on the basic certificate that the plaintiff notified of the correction of the family relations register, the plaintiff’s resident registration number was “57 △△*****”. It can be considered that the plaintiff’s simple labor labor.

D. Sub-committee

Therefore, in this case, the Plaintiff’s date of birth for calculating the Plaintiff’s retirement age should be “△△△△△, 1957,” which is presumed to be the actual date of birth, and the Plaintiff’s retirement age calculated based on this shall be March 31, 2016, which arrives after the date when he reaches 58 years of age from the date when he reaches 58 years of age pursuant to Articles 59(1) and 61(1) of the Rules of Employment of the Defendant, and as long as the Defendant contests this, the Plaintiff’s profits to seek confirmation of the above retirement age

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Lee Jae-chul (Presiding Judge)