[1] In a case where a collective agreement provides that "where a person applies for voluntary retirement, he/she may provide voluntary retirement, whether the voluntary retirement is a worker's right (negative)

[2] Whether Article 28(2) of the former Labor Standards Act prohibiting the differential retirement allowance system regarding the honorary retirement allowance system applies (negative)

[1] Where a collective agreement provides that "where a person applies for voluntary retirement, he/she may do so, he/she may do so." However, even under the above provision, it is difficult to readily conclude that the voluntary retirement is the worker's right, and the matters concerning the review of the voluntary retirement are stipulated in the personnel regulations, and the collective agreement provides that the chairperson of the trade union may attend the personnel committee at the time of examining the voluntary retirement and present his/her opinions, it shall be deemed that the collective agreement assumes that the company has discretion to accept the application for voluntary retirement.

[2] The fundamental purpose of the honorary retirement system is to boost the morale of employees, revitalize the organization, and improve the productivity of the business by inducing young and excellent staff members to lose their ability to perform their duties gradually due to aging. Thus, Article 28(2) of the former Labor Standards Act prohibiting the differential retirement allowance system applicable only to the ordinary retirement allowance system which has the nature of wage in the latter case does not apply to the honorary retirement allowance system established for such special purpose.

[1] Article 28 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 28 (2) (see current Article 34 (2)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

Plaintiff 1 and one other (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Agricultural and Fishing Villages Development Corporation (Attorney Doh-won, Counsel for defendant-appellant)

Suwon District Court Decision 96Na443 delivered on April 4, 1996

1. The plaintiffs' appeal is dismissed.

2. The appeal costs are assessed against the plaintiffs.

The judgment of the court below is revoked. The defendant shall pay to the plaintiff 1 the amount of 48,00,000 won with 25% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings as follows: Gap evidence 1 (collective agreement), Gap evidence 6-1 (employee's employee's employee's employee's employee's employee's employee's employee's employee's employee's employee's employee's employee's employee's worker's employee's employee's worker's employee's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker's worker'

A. The plaintiff 1 and the plaintiff 2 continued to work for each defendant corporation on August 1, 1974, and September 23, 1975, and as of October 1, 1995, the plaintiff 1 and the plaintiff 2 were in Grade III civil service workers, respectively.

B. Article 34(1) of the collective agreement concluded between the Defendant’s trade union and the Defendant provides that a person who has served as an employee for not less than 20 years and voluntarily applies for voluntary retirement during the period of not less than one year prior to the date of the date of the application for the voluntary retirement shall be eligible for the voluntary retirement, but (1) a person who is subject to disciplinary action, dismissal from position, temporary retirement, (2) a person who is at least twice in the pertinent class at the time of the application for the voluntary retirement, and (3) a person who has completed the commissioned education under the Defendant’s educational plan and who is under the compulsory service period stipulated by the Educational Regulations shall be excluded from the eligible for

C. Based on Article 34(1) of the above collective agreement, Plaintiff 1 applied for the voluntary retirement on October 5, 1995, which was the 21 year and 3 months after the employment period, but the Defendant rejected it, the Defendant received KRW 80,938,610 as the retirement allowance on October 27, 1995. Plaintiff 2 applied for the voluntary retirement on October 24, 1995, which was the 20th month after the employment period, but the Defendant rejected it, and the Defendant received KRW 81,492,220 as the retirement allowance.

2. Judgment on the plaintiffs' assertion

A. The Plaintiffs provide that “A person may make a voluntary retirement” under Article 34(1) of the above collective agreement. Thus, the Defendant’s employee meeting the above continuous service period has the right to make a voluntary retirement when applying for a voluntary retirement, and the Defendant does not have the right to review the granting of a voluntary retirement. In addition to the above general retirement allowances, Plaintiff 1 seeks payment of KRW 48,00,000, and Plaintiff 2 of the above amount of KRW 76,081,950, in addition to the above general retirement allowances.

However, as seen earlier, Article 34 (1) of the collective agreement provides that "where a person applies for voluntary retirement, he/she may do so." Thus, even under the above provision, he/she may be interpreted as the rights of employees belonging to the defendant. However, even under the above provision, it is not possible to readily conclude that the voluntary retirement is the rights of employees belonging to the defendant. In interpreting the above provision, it shall be interpreted by considering not only the pertinent provision but also the relevant provisions. In light of the above provision, Article 29 (2) 1 of the personnel regulations of the defendant, Article 29 (2) 1 of the personnel regulations of the court below, provides that the defendant's ordinary personnel committee shall take charge of the examination of the voluntary retirement of employees of Grade III or below (Article 25 (1) of the above collective agreement concerning examination of the voluntary retirement of employees of Grade II or higher, it is sufficient that the defendant's general personnel committee chairperson of the labor union or the person delegated by him/her, and thus, it is not necessary to accept the above request of the defendant for the above voluntary retirement.

Therefore, Article 34(1) of the above collective agreement merely provides for the eligibility to apply for the voluntary retirement. Therefore, if a defendant employee who meets the requirements for continuous service applies for the voluntary retirement, the defendant shall pay the voluntary retirement without any room to examine the father's father. The above assertion by the plaintiffs is without merit.

B. The plaintiffs also claim that the defendant would not have the right to review the granting of the voluntary retirement because it goes against the prohibition of the differential retirement system under Article 28(2) of the Labor Standards Act, if the defendant voluntarily received the voluntary retirement application, and therefore, the fundamental purpose of the voluntary retirement system is to promote the morale of the employees, to revitalize the organization, and to improve the productivity of the business by inducing the promotion of the young and excellent human resources to gradually lose the ability to perform duties due to aging, thereby inducing the employee's voluntary retirement. Article 28(2) of the Labor Standards Act, which applies only to the ordinary retirement allowance system with the nature of the latter wages, does not apply to the honorary retirement allowance system established for the above special purpose. Therefore, the above argument is without merit.

C. Furthermore, inasmuch as the Plaintiffs received the entire application for the voluntary retirement from other employees until they applied for their voluntary retirement, they should be considered to have been naturally accepted, and as such, the Defendant’s refusal to the voluntary retirement is contrary to the principle of trust, and thus, the Defendant asserts that the Defendant should pay the Plaintiffs the voluntary retirement, i.e., Gap evidence No. 4 (the current status of the retired workers, 1995), Eul evidence No. 5 (the holding of general personnel committee), Eul evidence No. 2 and 3, and Eul evidence No. 2 and 2 (the result of the opening of general personnel committee) as well as the testimony of Kim Jong-soo, all of which were applied for the above voluntary retirement by the Defendant for the remaining remaining remaining 5-year retirement age. In full view of these circumstances, since the Defendant’s employees were unable to reach the retirement age from 190 to 194, it would be more likely that the Plaintiffs would have rejected the above voluntary retirement age than the above remaining retirement age of 195-year employees.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed without any further review of the remaining points, and the judgment of the court below is just in its conclusion. Therefore, the plaintiffs' appeal against this is dismissed as it is without merit, and the costs of appeal are assessed against the plaintiffs who have lost them. It is so decided as per Disposition.

Judges Shin Soo-sung (Presiding Judge)