The case holding that Gap and Eul shall not be the purport that Gap shall pay Gap's wages or retirement allowances, etc. on the ground that Gap shall be deemed to continue to work for the workers who were employed in Eul as well as Gap's retirement from Gap, and that Gap shall maintain and pay Gap's wages, continuous service period, etc.

The case holding that Gap and Eul shall not be the purport that Gap shall pay Gap's wages or retirement allowances, etc. on the ground that Gap shall be deemed to continue to work for the workers who were employed in Eul as well as Gap's retirement from Gap, and that Gap shall maintain the same status as Gap's employees.

Articles 17 and 28 of the Labor Standards Act

Supreme Court Decision 92Da36106 delivered on December 22, 1992

Plaintiff 1 et al., Counsel for the defendant-appellant-appellee and 3 others, Counsel for the plaintiff-appellant-appellant-appellee

Attorney Lee Sung-ho et al., Counsel for the defendant-appellant

Seoul High Court Decision 91Na58187 delivered on July 10, 1992

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined. The supplemental appellate brief is considered to the extent of supplement in case of supplemental appellate brief.

On the first ground for appeal

In this case where the plaintiffs claim for retirement allowance against the defendant company, the plaintiffs must assert and prove that they have the right to claim retirement allowance against the defendant. In light of the records, it is clear that the defendant is disputing the defendant's obligation to pay retirement allowance against the plaintiffs, and it is not different even if there is a preparatory document of the defendant's legal representative on August 9, 1991, and it is not the purport of recognizing the plaintiffs' assertion that the defendant company is liable to pay retirement allowance to the plaintiffs.

Therefore, the judgment of the court below is not erroneous in violation of the principle of pleading or the principle of disposition right, and there is no reason to discuss.

On the second ground for appeal

According to the facts established by the court below, on May 1, 1974, Plaintiff 1 was employed and worked for the defendant company on July 11, 1980, and Plaintiff 1 was employed for the defendant company on July 10, 1984, Plaintiff 2 retired on November 10, 1988, and Plaintiff 1 retired on November 11, 1988, and Plaintiff 2 retired on October 23, 1989, and the non-party company agreed to establish and several matters separately. According to Article 10(1) of the management agreement, the non-party company's employees are deemed to continue to work for the defendant company and have the same status as the defendant's employees, and Article 10(2) of the above management agreement (Evidence 4) provides that the non-party company may dispatch the non-party company and the non-party company if necessary.

However, even if the facts are as above, it is reasonable to view that the non-party company and the defendant company are enterprises with a separate character, and that the retirement allowance for workers is liable to pay to the employer at the time of retirement, barring any special circumstances. In light of such circumstances and the whole contents of the above management agreement (Evidence A4), it is reasonable to view that Article 10(1) of the above management agreement provides that even if the employees of the defendant company retire from the defendant company and entered the non-party company, the defendant company maintains the period of continuous service, etc. of the defendant company as they are, it shall be deemed that the defendant company still maintains the wage and retirement allowance, etc. of all employees who retired from the defendant company and joined the non-party company.

Therefore, the court below's decision that the defendant company has no obligation to pay retirement allowances to the plaintiffs based on such opinion is just, and there is no error in the misapprehension of the evaluation of the above management agreement. There is no ground for discussion.

Therefore, all appeals are 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 on the bench.