[1] The validity of the employer's refusal of the renewal of an unfair labor contract against the right to expectation in a case where the right to expect the renewal of the labor contract can be acknowledged in a case where the labor contract concluded with a fixed period of time can be acknowledged

[2] Whether legitimate expectations for renewal of fixed-term workers formed before enforcement of the Act on the Protection, etc. of Fixed-term and Part-Time Workers are excluded or restricted (negative)

[1] In principle, the status of an employee who entered into an employment contract for a fixed period shall be naturally terminated upon the expiration of the fixed period of time, and his/her employee shall be automatically retired even if the refusal to renew the employment contract is not made if the contract is not renewed. However, even if the term expires in the employment contract, employment rules, collective agreement, etc., the pertinent employment contract shall be renewed upon the fulfillment of the required conditions. However, in full view of various circumstances surrounding the pertinent employment relationship, such as the details of the employment contract, the motive and circumstances leading up to the execution of the employment contract, the standards for renewal of the contract, etc., the establishment of the requirements or procedures for renewal of the employment contract, the actual condition of the work performed by the employee, and the contents of the work performed by the employee, etc., if the parties to the employment contract agree with the trust relationship that the contract shall be renewed if the required conditions are met, and the employer's refusal to renew the employment contract is not effective as it is unfair,

[2] As stipulated in Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), an employer may employ a fixed-term worker within a period of two years by implementing the Fixed-Term Workers Act, and even if a fixed-term worker is deemed an employee with no fixed-term employment period of two years, if the legislative purport of the above provision is basically to guarantee the status of the worker by preventing abuse of a fixed-term employment contract, it cannot be deemed that the legitimate expectation right for renewal of a fixed-term worker already formed before the enforcement of the Act is excluded or restricted by the enforcement of the Fixed-Term Workers Act.

[1] Article 23 of the Labor Standards Act / [2] Article 4 (1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

[1] Supreme Court Decision 2007Du1729 Decided April 14, 201 (Gong2011Sang, 925) Supreme Court Decision 2009Du2665 Decided July 28, 201 (Gong2011Ha, 1794) Supreme Court Decision 2010Du8225 Decided June 14, 2012

Korea Railroad Corporation (Law Firm Han & Yang LLC et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor (Attorney Choi Sung-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu33971 decided April 14, 2011

The appeal is dismissed. All costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 2

A. In principle, the status of an employee who entered into an employment contract for a fixed period is naturally terminated upon the expiration of the fixed period, and the employee’s status as an employee shall be automatically retired even if there is no declaration of refusal to renew the employment contract if the contract is not renewed. However, even if the term is terminated in the employment contract, employment rules, collective agreement, etc., the pertinent employment contract shall be renewed upon the fulfillment of certain requirements. In full view of all the circumstances surrounding the pertinent employment relationship, including the contents of the employment contract, the motive and circumstances leading up to the execution of the employment contract, the standards for renewal of the contract, etc., the establishment of the requirements or procedures for renewal of the employment contract, the actual conditions of the employment contract, and the contents of the work performed by the employee, if there is a trust relationship that the employment contract shall be renewed if certain requirements are met between the parties to the employment contract, the employer’s refusal to renew the employment contract unfairly in violation of the above provision has no effect as it is unfair, and the employment relationship after the expiration of the term is the same as the renewal of the previous employment contract (see, e.

Meanwhile, Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “An employer may employ a fixed-term worker within the extent not exceeding two years (in cases of repeated renewal, etc. of a fixed-term employment contract, to the extent that the total period of continuous employment does not exceed two years).” The proviso to paragraph (1) provides that “An employer may employ a fixed-term worker for more than two years.” Paragraph (2) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or termination of the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed-term worker.”

As above, an employer may employ a fixed-term worker within a period of two years by the implementation of the Fixed-term Act, and even if the total period of employment of a fixed-term worker exceeds two years, if such fixed-term worker is deemed an employee without a fixed-term employment contract, the legislative purport of the above provisions is basically to guarantee the status of an employee by preventing abuse of a fixed-term employment contract, it cannot be deemed that the legitimate expectation right for renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract is excluded or restricted by the enforcement

B. After finding the facts as stated in its reasoning, the lower court determined as follows: (a) each written employment contract between the Plaintiff and the Intervenor (hereinafter “ Intervenor”) stipulated that the final evaluation shall be conducted at the time when the contract expires; (b) the Plaintiff evaluated the work performance and renewed the contract with the Intervenor to obtain the points available for re-contract; (c) the Intervenor had been renewed eight times each year, including the work period at the Korea Railroad Authority, which is a telegraphic person of the Plaintiff before the refusal of the renewal of the contract in this case; and (d) the Plaintiff’s “Operational Rules for Professional Staff” of the Intervenor, which was in force at the time of the instant employment contract, concluded with the Plaintiff immediately before the refusal of the renewal of the contract in this case, prescribed that the contract shall be extended if the final average point is at least 75 points as a result of the evaluation of work performance; (d) abolished the limitation on the total work period of the technical staff; and (e) stated that the contract shall continue to be extended on a one-year basis unless there are any special reasons upon the renewal of the contract.

Examining the reasoning of the judgment below in light of the above legal principles, the decision of the court below is just, and there is no error in the misapprehension of legal principles or misapprehension of legal principles as to the application of the renewal substitute right after the enforcement of the Fixed-Term Act, as otherwise alleged in the ground of appeal.

2. As to the third ground for appeal

After finding the facts as stated in its reasoning, the lower court determined that the refusal of the renewal of this case for the purpose of evading the situation when the Plaintiff uses an intervenor in excess of two years pursuant to Article 4(2) of the Fixed-term Workers Act was an unfair dismissal on the grounds that there is no reasonable ground to believe that the refusal of the renewal of this case constitutes an unfair dismissal.

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the reasonable ground for rejection of renewal or mistake of facts.

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)