[1] The validity of the employer’s refusal to conclude a renewal contract without a justifiable ground (=effective) and the right to expect that the contract may be renewed to an employee, in a case where the employment contract is prepared for a fixed period and it is recognized that it is merely a form of the employer’s refusal to renew the contract without a justifiable ground (=negative)

[2] In a case where Party A, etc. entered into a contract with Party B for a two-year term of contract and renewed the contract for a two-year term of contract, and the final contract term expires without any further renewal of the contract, the case affirming the judgment below rejecting the assertion that Party B’s refusal to renew the contract has no effect of infringing Party A, etc.’s legitimate right to expectation for the renewal of the contract

[1] Article 23 of the Labor Standards Act / [2] Article 23 of the Labor Standards Act

[1] Supreme Court Decision 2005Du5673 Decided February 24, 2006 (Gong2006Sang, 527), Supreme Court Decision 2005Du16901 Decided September 7, 2007 (Gong2007Ha, 1570), Supreme Court Decision 2009Du2665 Decided July 28, 201 (Gong201Ha, 1794)

Plaintiff 1 and 40 (Law Firm Citizens, Attorneys Kim Ba-soo et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Bank of Korea (Attorney Han-il et al., Counsel for defendant-appellee)

Seoul High Court Decision 2010Nu10374 decided October 13, 2010

All appeals are dismissed. The costs of appeal including those resulting from supplementary participation are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In a case where a written contract setting a period of a short-term employment contract has been made, for example, where the period of a short-term employment contract becomes merely a type of a contract, such as where the contract is repeatedly renewed over a long-term period, and the motive and circumstances leading up to which the contract was made, the purpose and genuine intent of the parties to the contract setting the period, practices on the method of concluding the same kind of employment contract, and workers protection regulations, etc., if it is recognized that the period of a fixed-term employment contract is merely merely a form of a contract, notwithstanding the terms and conditions of the contract, it shall be deemed that the employer has entered into a non-fixed-term employment contract, and in such a case, the refusal of the employer to enter into the renewal contract without justifiable grounds shall be deemed null and void as in the case of dismissal. However, unless there are special circumstances to see that the period of a labor contract is merely a form as above, a labor relationship between the parties to the labor contract shall naturally be subject to separate measures such as dismissal of the employer, etc.

Meanwhile, even if the term of a labor contract cannot be deemed as a mere form of the fixed term of a labor contract, if a certain requirements are met even though the term expires in a labor contract, employment rules, collective agreement, etc., the pertinent labor contract shall be renewed if such requirements are met. In full view of various circumstances surrounding the pertinent labor contract, such as the motive and circumstance for which a labor contract is concluded without such provision, the establishment of requirements or procedures for renewal such as the standard for renewal of a contract, etc., the status thereof, and the details of the work performed by the worker, if there is a trust between the parties to the labor contract that the contract will be renewed if certain requirements are met, so the employer may have a legitimate expectation to renew the labor contract accordingly, the employer’s refusal to renew the labor contract in violation of such provision has no effect as unfair dismissal, and the labor relationship after the term expires is the same as the renewal of the previous labor contract (see Supreme Court Decision 2009Du3354, Apr. 14, 2011, etc.).

In full view of the adopted evidence, the court below rejected the Plaintiffs’ assertion that the contract period was terminated on January 31, 2009 without the renewal of the contract period, i.e., ① the contract without the fixed period of the employment contract, ② the Plaintiffs’ assertion that the renewal of the contract period was converted into an inorganic manpower contract, ③ the Plaintiffs’ assertion that the rejection of the contract renewal is invalid as it infringed the Plaintiffs’ legitimate expectation right to the renewal of the contract, ④ the Intervenor bank’s notification on February 1, 2008’s expiration of the contract period is invalid as it fails to meet the requirements for layoff dismissal.

Upon examining the records in light of the above legal principles, the fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the restriction on dismissal of a labor contract with a fixed period of time, omitting judgment, or by

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the part resulting from participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)