[1] The validity of the employer's refusal to conclude a renewal contract where a contract of employment was prepared for a fixed period and its period is merely the form of the contract.

[2] In a case where a school juristic person Gap's renewal of an employment contract five times a year by five times and notified Eul to be exempted from its position due to the expiration of the contract term, the case affirming the judgment below which held that the rejection of renewal constitutes dismissal on the ground that the employment contract without a fixed period of time under the premise that Eul's status as a reserve force commander is maintained, and it cannot be said that there is a reason to the extent that Eul cannot continue the employment relationship with Eul, and thus, the above rejection of renewal is unfair

[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 2009Du5374 Decided July 28, 201, Supreme Court Decision 2010Du24128 Decided November 10, 201

Plaintiff (Law Firm Han & Yang LLC, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

dong School Foundation (A&S Law, Attorneys Cho Young-ro et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu13363 decided September 1, 2011

The appeal is dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.

The grounds of appeal are examined.

1. In a case where a written contract with a fixed period of time is prepared, for example, where a certain period of a short-term contract is repeated over a long-term period of time and the relevant period of time becomes merely a type of a contract, taking into comprehensive account the contents of the written contract and the motive and circumstances leading up to the formation of the contract, the purpose and genuine intent of the parties concerned, practices of the same kind of contract conclusion method, worker protection regulations, etc., it shall be deemed that the written contract was concluded without a fixed period of time, notwithstanding the terms and conditions of the written contract. In such a case, the employer’s refusal to conclude a renewed contract without justifiable grounds is invalid as it is with dismissal (see, e.g., Supreme Court Decisions 2005Du5673, Feb. 24, 2006; 2009Du5374, Jul. 28, 2011).

2. According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff’s renewal of an employment contract with the Plaintiff is difficult to have practically examined as a general contracting officer, with the following: (b) the Plaintiff did not prepare a one-year labor contract but did not prepare an annual labor contract; (c) it was difficult to say that the overall labor relationship with the Plaintiff was stipulated by the terms and conditions of the contract; (b) the Plaintiff’s duties as a reserve force commander with the Plaintiff are not limited to temporary and continuous duties; and (c) even if the contract renewal rate of the Plaintiff’s labor contract with the Defendant’s Intervenor (hereinafter “ Intervenor”) is 52% or less, the Plaintiff’s refusal to renew the employment contract constitutes grounds for the Plaintiff’s refusal to renew the employment contract based on the premise that the Plaintiff’s refusal to renew the employment contract was not subject to restriction on the nature of the direction of the Ministry of National Defense and the practice of the Ministry of National Defense, which only applied to the order of workplace reserve forces with the recommendation system; and (d) the Plaintiff’s refusal to renew the employment contract.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.

3. 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 on the bench.

Justices Park Poe-young (Presiding Justice)