[1] The validity of the employer's refusal of the renewal of an unfair labor contract against the right to expectation in a case where the right to expect the renewal of the labor contract is recognized as a legitimate right to the worker who entered into the labor contract with a fixed period of time

[2] Whether legitimate expectations for renewal of fixed-term workers formed before enforcement of the Act on the Protection, etc. of Fixed-term and Part-Time Workers are excluded or restricted (negative)

[1] Article 23 of the Labor Standards Act / [2] Article 4 (1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

[1] Supreme Court Decision 2007Du1729 Decided April 14, 201 (Gong2011Sang, 925) Supreme Court Decision 2009Du2665 Decided July 28, 201 (Gong2011Ha, 1794) Supreme Court Decision 2010Du8225 Decided June 14, 2012

Korea Railroad Corporation (Law Firm Barun, Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant joining the Defendant (Attorney Choi Sung-ho, Counsel for defendant-appellant)

Seoul High Court Decision 2010Nu36666 decided June 22, 201

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. In principle, the status of an employee who entered into an employment contract for a fixed period is naturally terminated upon the expiration of the fixed period, and the employee’s status as an employee shall be automatically retired even if there is no declaration of refusal to renew the employment contract if the contract is not renewed. However, even if the term expires in the employment contract, employment rules, collective agreement, etc. provides that the relevant employment contract shall be renewed upon the fulfillment of certain requirements, or taking into account all the circumstances surrounding the relevant employment contract, including the motive and circumstances for the labor contract to be renewed, the standards for renewal of the employment contract, etc., the establishment of the requirements and procedures for renewal of the employment contract and the actual conditions thereof, and the contents of the work performed by the employee, if there is a trust relationship between the parties to the employment contract that the contract will be renewed upon the fulfillment of certain requirements, the employer’s refusal to renew the employment contract in violation of the above provision does not have any effect as it is unfair, and in this case, the employment relationship after the expiration of the term is the same as the renewal of the previous employment contract (see, e.g.29, April 14, 20111).

Meanwhile, Article 4(1) main text of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “An employer may employ a fixed-term worker within the extent not exceeding two years (in cases of repeated renewal, etc. of a fixed-term employment contract, to the extent that the total period of continuous employment does not exceed two years).” The proviso of paragraph (1) stipulates that “Where an employer is allowed to employ a fixed-term worker for more than two years, it shall be limited to cases where an employer is allowed to employ a fixed-term worker.” Paragraph (2) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or extinction of the proviso of paragraph (1), such fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed-term worker.”

In light of the legislative purport of the above provisions, even if a fixed-term worker is regarded as an employee without a fixed-term worker, if the employer can employ a fixed-term worker within a period of two years due to the implementation of the fixed-term worker law, and if the total period of employment exceeds two years, the right of legitimate expectation for the renewal of a fixed-term worker already formed prior to the enforcement of the fixed-term worker cannot be deemed to be excluded or restricted solely on the basis that the legislative purpose of the above provisions is to prevent abuse of a fixed-term employment contract.

B. Based on the evidence adopted, the lower court acknowledged the facts as indicated in its reasoning, and determined as follows: ① each written employment contract between the Plaintiff and the Intervenor (hereinafter referred to as the “ Intervenor”) stipulated that the contract should be made final evaluation at the time of termination of the contract; (3) the Plaintiff evaluated the work performance and renewed the contract with the Intervenor to obtain the points available for re-contract; and (4) the Intervenor entered into a re-contract on four consecutive occasions including the work performance at the Plaintiff’s Office, a telegraph, prior to the refusal of the renewal of the contract; and (2) the Plaintiff’s “Operational Rules for Professional Staff” of the Plaintiff, which was in force at the time of the conclusion of the instant employment contract, provided that the contract shall be extended if the final point is at least 75 points as a result of work performance evaluation; (4) abolished the limitation on the total service period of the specialist, while using the contract for one year or more, the contract shall be deemed to have been concluded to have been extended on a one-year basis, unless there is any special reason to the contract.

Examining the reasoning of the judgment below in light of the above legal principles, the decision of the court below is just, and there is no error in the misapprehension of legal principles as to the right to expect renewal after the enforcement of the Fixed-term Act, or in the misapprehension of legal principles as to whether to recognize the right to

2. As to the third ground for appeal

After finding the facts as stated in its reasoning, the lower court determined that the Plaintiff’s refusal to renew the instant case for the purpose of evading the use of an intervenor in excess of two years pursuant to Article 4(2) of the Fixed-term Workers Act was unfair on the grounds that there was no reasonable ground to believe that the refusal to renew the instant case was an unfair dismissal.

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the reasonable ground for rejection of renewal.

3. Conclusion

Therefore, the appeal is 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.

Justices Kim Shin (Presiding Justice)