[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 can be acknowledged in a case where the labor contract concluded with a fixed period of time can be acknowledged

[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 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)

Plaintiff 1 and one other (Law Firm Songn, Attorneys Yoon Yong-dae et al., Counsel for the plaintiff-appellant)

Korea Railroad Corporation (Law Firm Yang, Attorneys Park Chang-ju et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2011Na5613 decided June 4, 2013

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

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

A. In principle, a worker who has entered into an employment contract for a fixed period shall naturally terminate his/her status as an employee upon the expiration of the fixed period and, if he/she fails to renew his/her employment contract, he/she shall automatically retire even if there is no declaration of refusal to renew the employment contract. However, in light of the various circumstances surrounding the employment contract, including the details of the employment contract, the motive and circumstances leading up to the renewal of the employment contract, the standards for renewal of the employment contract, 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 worker, if there is a trust relationship between the parties to the employment contract that the renewal of the employment contract would be possible if certain requirements are met, the employer's refusal to renew the employment contract in violation of the contract has no 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., Supreme Court Decision 2007Du1729, Apr. 14, 2011).

Meanwhile, Article 4(1) 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 to paragraph (1) provides that “An employer may employ a fixed-term worker for more than two years.” Paragraph (2) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or termination of the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed-term worker.”

As above, even if an employer can employ a fixed-term worker within a period of two years, and if the total period of employment of a fixed-term worker exceeds two years, if such fixed-term worker is deemed an employee without a fixed-term employment contract, the legislative purport of the above provisions is basically to guarantee the status of an employee by preventing abuse of a fixed-term employment contract, it cannot be deemed that the legitimate expectation right for renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract is excluded or restricted merely by the enforcement of the fixed-term employment

B. After finding the facts as stated in its holding, the lower court determined that: (a) the Plaintiffs could continue to renew the instant employment contract for three consecutive years, which is the limit of the contract period if the evaluation of work performance shows good quality according to the content of the employment contract of the instant primary employment contract and the management rules of the contract employees, but thereafter, it is reasonable to deem that the Plaintiffs would expect that the instant employment contract will continue to be implemented, unless there are special circumstances, such as the evaluation of work performance, etc. in the future; and (b) the Plaintiffs could not be deemed to have renounced the right to expect renewal of the said employment contract or have extinguished the right to expect renewal of the employment contract solely on the ground that the Plaintiffs determined the contract period for only one year, different from the instant three employment contract, and (c) the right to expect renewal of the employment contract could not be deemed to have been justified on the ground that the Plaintiffs could not have limited the right to renew the employment contract for the period of time.

In light of the records and the legal principles as seen earlier, the judgment of the court below is just, and there is no error by misapprehending the legal principles on the application of the renewed expectation right after the enforcement of the Fixed-term Act.

2. Regarding ground of appeal No. 3

In light of the records, the court below determined that there is no reasonable ground for rejection of renewal of this case. In light of the records, the court below's determination is just, and there is no error by misapprehending the legal principles as to the reasonable ground for rejection of renewal.

3. Regarding ground of appeal No. 4

The court below determined that, although the term of the instant employment contract is one year, the Plaintiffs have the legitimate expectation that the instant employment contract will be renewed, the Defendant refused to renew the contract with the Plaintiffs on the grounds of reasonable grounds and did not return to the original state after refusing to renew the contract without reasonable grounds. Thus, barring special circumstances, the Plaintiffs should be deemed to have the same status as the previous employment contract has been renewed even after the expiration of the term of the contract in accordance with the right to expect renewal of the instant fourth employment contract, which is the last employment contract, and therefore, the Plaintiffs may continue to claim wages until their reinstatement.

In light of the records, such determination by the court below is just, and there is no error by misapprehending the legal principles on the scope of obligation to pay wages.

4. Conclusion

Therefore, all appeals are 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)