(a) The scope of the employment relationship comprehensively succeeded pursuant to the contract for business transfer, and whether the relevant basic date of succession can be determined differently from the date of conclusion of the contract;

B. Validity of a special agreement between the transferor party to exclude part of the labor relations from those subject to succession

A. A labor relationship succeeded under a contract for transfer of business refers only to the labor relationship of workers who have been actually employed as of the date of conclusion of the contract, and is not succeeded to the labor relationship of workers who dispute the validity of dismissal as workers dismissed before the date of conclusion of the contract, and the parties to the contract for transfer of business may determine the date of succession of the labor relationship as of the date of conclusion of the contract, taking into account the period required

B. Where there is a special agreement between the business transferring party to exclude part of the labor relations from the subject matter of succession, the succession of labor relations may not be achieved accordingly. However, such special agreement is valid only when there is a justifiable ground under Article 27(1) of the Labor Standards Act, since it does not substantially differ from dismissal.

(b)Article 27(1) of the Labor Standards Act;

A. Supreme Court Decision 91Da40276 delivered on July 14, 1992 (Gong1992, 2384) (Gong1993Ha, 1832) 91Da41750 delivered on May 25, 1993 (Gong1993Ha, 1832). Supreme Court Decision 93Da33173 delivered on June 28, 1994 (Gong194Ha, 2082)

Plaintiff

Daw Industry Corporation

Seoul High Court Decision 93Na35195 delivered on October 5, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The plaintiff's grounds of appeal are examined.

1. On the first ground for appeal

In the event that a contract for transferring or taking over part of another company's business sector is entered into and the personal organization of the transferor and the worker are also comprehensively succeeded to the transferee as a matter of principle, the employment relationship between the transferor and the worker shall be comprehensively succeeded to the transferee. However, the succeeded employment relationship refers only to the employment relationship between the worker who actually worked in the business sector as of the date of conclusion of the contract, and is not succeeded to the employment relationship between the worker who was dismissed while working in the business sector before the date of conclusion of the contract (see, e.g., Supreme Court Decision 91Da41750, May 25, 1993). The parties to the contract for transferring the business can determine the succession base date as different from the date of conclusion of the contract, considering the period required for the transfer process.

According to the records, on September 21, 1992, the defendant company entered into a contract to take over the business rights of the hotel bath, which is part of the business sector of the non-party company from the non-party company (hereinafter the non-party company) and agreed to take over all of the hotel employees as of October 1, 1992 after the contract date. The non-party company can recognize the fact that the plaintiff, a cook of the above hotel, was disciplined before the above hotel succession date. If the facts are found, unless the plaintiff was dismissed before the succession date of the employment relationship, the labor relations between the plaintiff and the non-party company shall not be succeeded to the defendant company, unless there are special circumstances.

The judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the transfer of labor relations when transferring business such as the theory of lawsuit. There is no ground for argument

2. On the second ground for appeal

Where there is a special agreement between the parties to a transfer of business to exclude part of a labor relationship from the subject matter of succession, the succession of the labor relationship may not be achieved accordingly. However, such special agreement is valid only when there is a justifiable ground under Article 27(1) of the Labor Standards Act, since it does not substantially differ from dismissal (see Supreme Court Decision 93Da33173, Jun. 28, 1994).

However, even after examining the records in the case of this case, there is no evidence to acknowledge that the defendant company was dismissed prior to the date of succession of the labor relationship by collusion with the non-party company for the purpose of not succeeding the labor relationship with the plaintiff, because the defendant company was practically the same as the non-party company, which was the president of the labor union of the non-party company.

The judgment of the court below that rejected the plaintiff's assertion is just, and there is no error of law by misunderstanding the legal principles as to unfair labor practices such as the theory of lawsuit, omission of judgment, or violation of the rules of evidence. We are without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)