(a) The probative value of the final and conclusive civil judgments;

(b) The case holding that, if a worker is dismissed as a result of the discontinuance of a business, it is valid unless the business is discontinued.

A. In a civil trial, even though it is not bound by the facts established in the judgment of other civil cases, etc., the facts established in the already established civil case shall be valuable evidence unless there are special circumstances, and it shall not be rejected without reasonable reasons.

(b) The case holding that the employment relationship with the employer is terminated as it is valid as it belongs to the freedom of business management, in principle, unless it is a disguised closure for hindering the right to organize, etc. of a trade union.

C. Even if an employer discontinues his/her business after closing his/her business, and re-employed an employee, barring special circumstances, the period of his/her employment before dismissal should also be included in the calculation of retirement benefits. Thus, since the employment relationship is newly established from the date of his/her re-employment, the retirement benefits after his/her re-employment should be calculated from the date of his

A. Article 187 of the Civil Procedure Act: Article 27(1) of the Labor Standards Act; Article 39 of the Trade Union Act; Article 28 of the Labor Standards Act

Supreme Court Decision 94Da3002 delivered on January 12, 1995 (Gong1995Sang, 876) 94Da47292 delivered on June 29, 1995 (Gong1995Ha, 2527) 90Nu9421 delivered on May 12, 1992 (Gong1992, 187) 93Da7457 delivered on June 11, 1993 (Gong193Ha, 2016)

Attorney Seo-gu, et al., Counsel for the plaintiff 1 and four others

Attorney Park Jong-soo et al., Counsel for the defendant-appellant

Daegu District Court Decision 94Na5807 delivered on September 30, 1994

The judgment below is reversed, and the case is remanded to Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Based on the evidence of the above time, the court below acknowledged that the defendant company did not conduct normal operation since the establishment of the labor union after December 1, 1987 due to the occurrence of a division between the labor and management, and that the defendant company received wages on the 30th of the same month under the premise that the worker, including the plaintiffs, who were demanded to submit a written resignation at the time of closure of business, and when the division is settled after several months, the company returned to the original state, and then dismissed the employees. The court below decided that the company should resume the production activities on February 29, 198, and then operated the factory again through the form of new employment of all workers who want to continue to work including the plaintiffs on March 16 of the same year, and that the plaintiffs continued to work for the same period from the date of closure of business until the date of closure of business, and that the plaintiffs continued to work for the same period under the premise that the plaintiffs continued to work for the same period from the date of closure of business before and after the date of closure of business.

2. The recognition and determination of the above facts by the lower court is ultimately made to the effect that the closure of the Defendant Company is a disguised discontinuance of business, since the Defendant Company temporarily closed down its business in order to weaken the activities of the labor union even though there is no genuine intent to discontinue its business.

However, we cannot accept the judgment of the court below for the following reasons.

In a civil trial, the facts recognized in a civil case already established, even though they are not bound by the facts established in the judgment of other civil cases, etc., shall not be rejected without reasonable grounds (see, e.g., Supreme Court Decision 92Da51372, Mar. 12, 1993; Supreme Court Decision 94Da33002, Jan. 12, 1995; Supreme Court Decision 94Da47292, Jun. 29, 1995).

According to the evidence evidence Nos. 1, 2, 3, and 5, the non-party et al., who was an employee of the defendant company, filed a lawsuit seeking nullification of dismissal against the defendant company by asserting that dismissal against the above non-party is null and void since the closure of business was a disguised closure of business conducted by retaliation against workers who participated in trade union activities. The evidence consistent with the assertion is rejected. Rather, according to other evidence, it is recognized that the closure of business of the defendant company was made through legitimate procedures, such as through a resolution of closure of a general meeting of members under the circumstances where the normal operation was impossible for a long period of time, and the closure of business cannot be deemed null and void as a disguised closure of business. In addition, according to the records, the non-party et al., who was dissatisfied with the above non-party et al., appealed and dismissed the appeal by the Supreme Court, and the previous evidence No. 9-1, 2, 10, 14, and 18 of the evidence admitted by the court below, as well as evidence No. 17 evidence No.

Nevertheless, the finding of facts that are contrary to the facts recognized in the previous civil case finalized by the court below is erroneous in violation of the rules of evidence, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. An employer’s discontinuance of business of his/her management and dismissal of employees under his/her control is, in principle, belonging to the freedom of business management, unless it is a disguised discontinuance of business to interfere with the union’s right to organize, and thus, the labor relationship with the employee is terminated once again (see Supreme Court Decision 93Da7457, Jun. 11, 1993). Even if an employer resumes his/her business and re-employed an employee, barring special circumstances, the period of work before the dismissal should be included in the calculation of retirement benefits. Thus, the labor relationship is newly established from the date of re-employment, and the retirement benefits after re-employment should be calculated from the date of re-employment.

The defendant company, as an employer, may freely determine the position, wage level, etc. of workers after the resumption of business by taking into account all the circumstances, such as the career, position, wage, and period of the worker before the closure of business. Thus, even if there are circumstances in which the plaintiffs received benefits calculated under the premise that the plaintiffs worked in the same position before and after the closure of business and continued to work before and after the closure of business, it cannot be deemed that the defendant company expressed its intent to include the same period of work before and after the dismissal of employees, including the plaintiffs, in calculating the retirement allowance.

Nevertheless, the judgment of the court below which judged that a labor relationship had been continued before and after the closure of business shall have affected the conclusion of the judgment by misunderstanding the legal principles on continuous employment as stipulated in Article 28 of the Labor Standards Act. The arguments pointing this out are with merit.

4. Accordingly, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)