[1] The validity of a labor contract, employment rules, and collective agreement that provide for the retirement age of workers under 60 years of age (i.e., invalid within the scope of violation) and the standard for calculating “retirement age” (=the date of actual birth)

[2] The case holding that Gap's retirement age should be calculated on the basis of the corrected date of birth in the family relations register, in case where Gap requested Eul to correct Eul's resident registration number and the scheduled date of retirement under the family relations register after Gap received the court's permission to correct Eul's date of birth on the family relations register at the time of entry into Eul, but Eul rejected Eul's request on the ground of the personnel regulations enforcement of "the retirement age calculation date of the employee shall be the date of birth on the document by which the employee's age can be verified at the time of appointment"

[1] According to Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion, an employer shall set the retirement age of workers at 60 years or older (Paragraph 1), and where an employer sets the retirement age of workers at below 60 years of age, the retirement age shall be deemed set at 60 years of age (Paragraph 2). Therefore, a labor contract, employment rules, and collective agreement that stipulates that the retirement age of workers below 60 years of age shall be null and void to the extent that it violates the above provision. In addition, “retirement age” in this context should be calculated based on the actual date of birth.

[2] In a case where Gap entered Gap's date of birth in the personnel records, etc. according to the date of birth registered on the family register at the time of entry into the Corporation Eul, and Gap requested Eul to correct Eul's date of birth with the changed date of resident registration number and retirement on the family relations register after Gap received the permission to correct the date of birth on the family relations register, but Eul rejected Eul's request based on the personnel regulations enforcement of "the date of age calculation for employees shall be the date of birth on the document that can verify the age of employees submitted at the time of appointment", the case held that "the retirement age" under the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (hereinafter "the Elderly Employment Promotion Act") was calculated on the basis of the actual date of birth, unless there is any clear counter-proof to reverse this, Gap's date of birth should be calculated on the basis of Gap's corrected date of birth on the family relations register, and Gap's actual date of birth should be calculated on the basis of Gap's revised date of birth on the basis of the above correction method within the limit of 10 years.

[1] Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion / [2] Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion

Plaintiff (Attorney Kim Jae-in, Counsel for the plaintiff-appellant)

Seoul metro (Attorney Song-chan, Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2025247 decided September 2, 2016

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

The grounds of appeal are examined.

1. According to Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (hereinafter “the Elderly Employment Act”), an employer shall set the retirement age of workers at least 60 years (Paragraph 1). If an employer sets the retirement age of workers at below 60 years of age, the retirement age shall be deemed set at 60 years of age (Paragraph 2). As such, a labor contract or employment rules, which stipulates that the retirement age of workers is below 60 years of age, and a collective agreement is null and void to the extent that it violates the aforementioned provisions. Moreover, “retirement age” in this context should be calculated on the basis of the actual date of birth.

2. According to the reasoning of the lower judgment, the lower court: (a) registered the Plaintiff’s date of birth on the Plaintiff’s family register as “ December 1, 1958; (b) stated the Plaintiff’s date of birth as “ December 1, 1958”; (c) determined that the Plaintiff’s date of birth on the family relations register from the court on July 19, 2013 to “ January 9, 1959”; and (d) requested the Defendant to correct the date of birth on August 22, 2013 according to the changed date of birth as above; (e) determined that the Plaintiff’s provision on the personnel management record and the date of birth on the date of birth as “the date of birth on December 17, 2013; hereinafter the same shall apply); and (e) determined the Plaintiff’s retirement age as “the date of birth on the date of birth on the basis of the revised provision on the date of birth on the date of birth under Article 15 of the Personnel Management Regulations,” and (e.

3. However, as seen earlier, the “retirement Age” under the Elderly Employment Act is calculated on the basis of the actual date of birth. The entries in the family relations register shall be presumed to be consistent with the truth unless there is any clear counter-proof to reverse this. Thus, unless there is any clear counter-proof, the Plaintiff’s date of birth shall be deemed to be January 9, 1959, which is the date of birth of the corrected family relations register, and the Plaintiff’s retirement age calculated on the basis thereof shall be December 31, 2019.

In addition, as stated in the judgment of the court below, if the latter part of Article 55 of the personnel regulations of the defendant set the retirement age only on the basis of the date of birth on the document submitted by the defendant at the time of appointment, and if the retirement age based on this is less than 60 years of age based on the actual date of birth, the method of correcting erroneous dates of birth and reflecting actual dates of birth is entirely not permitted, such scope is in violation of Article 19 of the Elderly Employment Act

Nevertheless, the lower court erred by misapprehending the legal doctrine on retirement age under Article 19 of the Elderly Employment Act, thereby adversely affecting the conclusion of the judgment, which affected the conclusion of the judgment, by misapprehending the legal doctrine on retirement age under Article 19 of the same Act.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)