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

서울메트로 (소송대리인 법무법인 두우 담당변호사 고샛별)

March 17, 2016

1. The Plaintiff’s retirement age is confirmed until December 31, 2019.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On January 23, 1983, the Plaintiff was employed by the Defendant as a Grade-V in technical service and served as an engineer, and was promoted three times, and is currently serving as the Vice-head of ○○○○ Office.

B. At the time of the Plaintiff’s entry, the date of birth on the family register was registered as “the date of December 1, 1958,” and the date of birth of the Plaintiff was stated in the personnel records, etc. as “the date of birth of the Plaintiff on December 1, 1958.”

C. On July 19, 2013, the Plaintiff filed an application with the Seoul Western District Court for correction of the registry, asserting that its actual date of birth different from that of its actual date of birth was registered in the family relations register, and the above court decided to permit the correction of the date of birth on the Plaintiff’s family relations register to “the date of birth on January 9, 1959” from “the date of birth on December 19, 1958.” Accordingly, on August 1 of the same year, the Plaintiff’s date of birth on the Plaintiff’s family relations register was corrected to “the date of birth on January 9, 1959.” On August 22 of the same year, the Plaintiff’s resident registration number was corrected to “581201-*****” from “590109-9*************

D. After that, on August 22, 2013, the Plaintiff requested the Defendant to correct the resident registration number and the scheduled date of retirement under the Plaintiff’s personnel records according to the changed date of birth as above. However, the Defendant notified the Plaintiff that the date of retirement cannot be changed on or around the 23th of the same month. However, the Defendant changed the resident registration number to “590109-********.”

E. Article 55 of the Personnel Regulations of the Defendant prescribed that “the retirement age shall be the date of birth of the relevant employee.” However, on June 13, 2013, the Defendant amended that “the date of birth on documents verifying the age of the employee submitted at the time of appointment shall be the date of birth of the employee.” The main contents of the Personnel Regulations in relation to the instant case (amended by June 13, 2013) and the Personnel Regulations (amended by December 17, 2013) are as follows.

Article 18-2 (Adjustment and Change of Personnel Records) (1) The head of the personnel department in charge of personnel affairs shall, without delay, register and manage all matters concerning personnel affairs in the electronic computer system. (2) The head of the department in charge of personnel affairs shall prepare an application for change of personnel records with documentary evidence to the head of the department in charge of personnel affairs, when the grounds for correction, change, or addition of personnel records of the employee have occurred. The base date of the retirement age under Article 32 of Regulations 5 (Retirement Age Base Date) shall be December 31 of the year in which the employee reaches the retirement age. In this case, the retirement age calculation date of the employee shall be the date of birth on the document that can verify the age of the employee submitted at the time of appointment. (3) The retirement age of the employee shall be 60 years (1) 1) 1. (2) The person in charge of personnel affairs and personnel affairs of the employee shall prepare the personnel records in accordance with Article 57 (1) 1. 2. 15 years and 2. 16 years 2. 15 years 15 years 1, 25 years 1, 1,25 years 1,25 years 1,2,25.

Article 32 (Retirement Age) (1) The retirement age of employees shall be 60 years of age 1)

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Although the date of birth was erroneously registered on the Plaintiff’s family relations register and the date of birth was corrected by the court’s decision, the Defendant calculated the retirement age on the basis of the date of birth mistakenly stated at the time of the Plaintiff’s entry as well as the latter part of Article 55 of the Regulations on Personnel Management were invalid in violation of Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (hereinafter “the Elderly Employment Act”). Accordingly, the Plaintiff’s retirement age was extended on December 31, 2019, which is calculated on the basis of the actual date of birth.

B. The defendant's assertion

After the enforcement of the latter part of Article 55 of the Regulations on Personnel Management, the Plaintiff requested the Defendant to change the resident registration number and the scheduled date of retirement under the personnel records, and the Plaintiff shall calculate the retirement age based on the date of birth on the documents submitted at the time of entry in accordance with the amended Regulations on Personnel Management.

3. Determination

The latter part of Article 55 of the Regulations on the Enforcement of the Regulations on the Personnel Affairs provides that the retirement age calculation date of an employee shall be the date of birth on a document verifying the age of an employee submitted at the time of appointment. The Plaintiff requested the extension of the retirement age to the Defendant after the enforcement of the Regulations on the Personnel Affairs. However, the following circumstances revealed in full view of the facts and the purport of the entire arguments, namely, ① entry of the Defendant’s personnel record card on a family register or resident registration card, which the employee submitted at the time of his/her entry, appears to have been based on the official document proving his/her status, such as a family register or resident registration copy, which is, under a strong premise that the entry of the public document is consistent with the truth. ② The change in the entries of the personnel record card is made even if there is a change in the entries of the personnel record card, and thus, it is deemed that the Defendant’s procedure to revise the erroneous status and reflect the actual status relationship is intended to manage the actual status relationship, and ③ the Defendant’s submission of the latter part of the labor contract should also be included in the document.

Therefore, in this case, the date of birth for calculating the Plaintiff’s retirement age should be “the date of January 9, 1959,” which is the actual date of birth, and the Plaintiff’s retirement age calculated based on this shall be December 31, 2019, pursuant to Article 32 of the Personnel Management Regulations and Article 55 of the Enforcement Rule of the Personnel Regulations, and as long as the Defendant contests this, there exists a benefit to seek confirmation.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges of the Republic of Korea (Presiding Judge)

Note 1) From January 15, 2014, before enforcement and amendment, “58 years of age” was deemed “58 years of age.”