(영문) 대법원 2013.12.12.선고 2011두4282 판결

Article 530-10 of the Commercial Code provides that a company established by division (hereinafter referred to as a "newly incorporated company") shall succeed to the rights and obligations of the divided company in accordance with the division plan, so the labor relationship of the divided company may be included in the subject of succession under the above provision.

However, in light of the purport of the Constitution, such as the right to self-determination of workers with respect to working conditions (Article 4), prohibition of forced labor (Article 7), employer’s duty to specify working conditions (Article 17), prohibition of unfair dismissal, etc. (Article 23) or restriction on dismissal for managerial reasons (Article 24) in order to guarantee the freedom to choose an occupation, and to protect workers, the effect of succession to a labor relationship by a company division shall be denied if it is used as a means to avoid the statutory provisions for the protection of workers, such as restrictions on dismissal, etc.

Therefore, in cases where a part of a business division succeeds to a newly incorporated company due to the division of a company which has engaged in two or more businesses, if the divided company explained the company division background, purpose and time, the scope and contents of the succeeded labor relationship, the outline and contents of the newly incorporated company, etc. and followed procedures for seeking understanding and cooperation before obtaining the approval of the general meeting of shareholders on the division plan, the labor relationship regarding the succeeded business shall be succeeded to the newly incorporated company even if the relevant worker did not obtain the consent of the relevant employee. Provided, That in special circumstances, such as where the division of the company is used as a means to dismiss the relevant employee while avoiding restrictions on dismissal under the Labor Standards Act, the relevant employee may refuse the succession of labor relations by expressing his/her opposing opinion within a reasonable period of time from the time when he/she received the notification of succession of labor relations or becomes aware

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the plaintiff company established Hyundai B&P P&P (hereinafter referred to as "N&P") by dividing the legal entity's business sector from Oct. 23, 2008 to Mar. 2009. The intervenor joining the defendant (hereinafter referred to as "the intervenor") was in charge of inventory management in the fashion unit belonging to the legal entity's business sector after joining the plaintiff company. The plaintiff company requested labor-management consultation with the labor union from Oct. 23, 2008 about the division of the company of this case, but the labor union claimed that the labor union should determine the working conditions of the union members succeeded to the labor relationship due to Hyundai B&P, and the agreement was not run properly. The plaintiff company held around five months from Oct. 2008 to Mar. 2009 with respect to the necessity of the division of the company's business sector, the method of explaining the company's employees division and the information meeting related to the company's business sector's employees succession and employment.

In light of the above facts in light of the legal principles as seen earlier, the Plaintiff Company demanded consultation with the labor union regarding the division of the instant company, and held an explanatory meeting on the division of the company against workers over a five-month period. Thus, barring special circumstances, such as that the division of the instant company would circumvent the restrictions on dismissal under the Labor Standards Act, the Intervenor’s labor relationship should be deemed succeeded to the Hyundai B&P regardless of whether the Intervenor raised an objection against the succession of the labor contract under the instant division, regardless of whether the Intervenor raised an objection against the succession of the labor contract.

Nevertheless, the lower court determined that the Intervenor’s labor relationship is not succeeded to Hyundai B&P, on the premise that the employee’s labor relationship does not succeed to the newly established company if the employee exercises the right to refuse to succeed to the labor relationship according to the instant company division, on the contrary that the employee’s labor relationship does not succeed to the newly established company. In so doing, the lower court erred by misapprehending the legal doctrine on the succession to the labor relationship due to the company division.

Therefore, without examining the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.