In a case where the Kimhae-si Facility Management Corporation concluded a labor contract with two years for the term of the contract and renewed the contract once again with Gap who had worked as a physical clinic of the senior citizen's general welfare center, and rejected Gap's renewal of the contract, the case affirming the judgment below holding that Gap's refusal of renewal of the contract constitutes an unfair dismissal on the ground that Gap's legitimate expectation right to renew the contract is recognized.

Article 23 of the Labor Standards Act

[Judgment of the court below]

The Chairman of the National Labor Relations Commission

Kimhae-si Facility Management Corporation

Seoul High Court Decision 2009Nu25783 decided April 8, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

In principle, the status of a worker who entered into an employment contract with a fixed period of time shall be naturally terminated upon the expiration of the contract and shall be automatically retired even if there is no declaration of refusal to renew the 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 contract shall be renewed upon the fulfillment of certain requirements, regardless of the expiration of the contract. In full view of the circumstances surrounding the employment relationship in question, such as the motive and circumstances for which the contract is concluded, the standards for renewal of the contract, etc., the establishment and circumstances of the contract, and the contents of the work performed by the worker, etc., if the contract is concluded upon the fulfillment of certain requirements between the parties concerned, the trust relationship that the contract shall be renewed if the contract is renewed upon the fulfillment of the specific conditions between the parties concerned, and the employer's refusal to renew the employment contract is not effective as in the absence of any validity, and the employment relationship after the expiration of the term is the same as the renewed employment contract (see, e.g., Supreme Court Decision 2007Du1729, Apr.

The court below, based on the adopted evidence, found the facts as stated in its decision, and determined as follows: (1) The defendant assistant intervenor's contract worker's provision providing that "the employment period may be extended unless the contract worker's work is terminated, and the president may evaluate the contract worker's work status and work performance performance on a regular or occasional basis and reflect them at the time of extension of contract; and (4) the contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract renewal is planned to be renewed for at least 25 years; (2) the contract worker's contract renewal is one of the main duties of the welfare center of this case; (3) the elderly assistant's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's contract worker's right to renew's contract worker's contract worker's reasonable measures are not legitimate.

Furthermore, the lower court determined that the refusal of the renewal of the instant employment contract with the Plaintiff, solely on the ground that the Intervenor, the employer, did not follow the procedure for the consent of the existing employees and did not provide specific criteria for granting additional points to the existing employees, and that the Plaintiff, the legitimate expectation right for renewal of the employment contract, should be selected through the open recruitment procedure, rather than the re-contract procedure, should be avoided, and that the refusal of the renewal of the instant employment contract with the Plaintiff constitutes unfair dismissal as it unfairly refusing the renewal of 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 of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal principles on labor contract and unfair dismissal with a fixed period of time, as otherwise alleged in the ground of appeal.

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 Lee In-bok (Presiding Justice)