[1] The validity of the employer's rejection of renewal of a contract without justifiable grounds where it is recognized that a fixed term of employment contract is merely a form of a fixed term of contract (negative)

[2] In a case where the notice of the expiration of the term of a labor contract is given to an employee of the higher-ranking staff who has been working for renewal of a labor contract for a fixed period of three times in accordance with the ASEAN policy of a newspaper company to abolish the heat department, the case holding that the above term of a labor contract is merely a type of dismissal for an employee without a fixed term of a contract, and there is no justifiable ground for the dismissal

[1] In a case where a contract term is fixed, barring any special circumstance in accordance with the language and text of the contract, it shall be deemed that the contract was entered into between the employee and the employer, barring any special circumstance. In this case, when the contract term expires, the contract term shall be terminated naturally without any separate measure such as dismissal of the employer. However, even in a case where the contract term is set up, for instance, the contents of the contract and the motive and circumstance leading up to the execution of the contract, such as where the contract term is repeatedly renewed over a long period of time, and the motive and circumstance leading up to the formation of the contract, such as the purpose of setting the period, the purpose of the contract term, the length and frequency of the contract term, practices on the method of concluding the contract of continuous employment as at the time of employment, and the worker protection laws and regulations, if it is deemed that the contract term is merely in the form, regardless of the language and text of the contract, it shall be deemed that the employer has actually entered into a non-fixed contract without any justifiable reason.

[2] In a case where a notice of the expiration of the term of a labor contract is given to an employee of the higher-ranking staff who has been working for renewal of a labor contract for a fixed period of three times in accordance with the ASEAN policy of a newspaper company to abolish the heat department, the case holding that the above term of a labor contract is merely a type of dismissal for an employee without a fixed term of time, and that such dismissal does not have justifiable grounds

[1] Articles 23 (see current Article 16) and 30 (1) (see current Article 23 (1)) of the former Labor Standards Act (amended by Act No. 8074 of Dec. 21, 2006) / [2] Articles 23 (see current Article 16) and 30 (1) (see current Article 23 (1)) of the former Labor Standards Act (amended by Act No. 8074 of Dec. 21, 2006)

[1] Supreme Court Decision 97Da42489 delivered on January 23, 1998 (Gong1998Sang, 603) Supreme Court Decision 98Du625 delivered on May 29, 1998 (Gong1998Ha, 1796) Supreme Court Decision 2005Du5673 Delivered on February 24, 2006 (Gong2006Sang, 527)

Cho Il-il Co., Ltd.

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant

Seoul High Court Decision 2004Nu23669 delivered on November 24, 2005

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

The grounds of appeal are examined.

In a case where a written employment contract setting the term of a labor contract is prepared, barring any special circumstance, it shall be deemed that an employment contract was concluded between an employee and an employer with a fixed term of time. In this case, when the term of a labor contract expires, the employment contract is naturally terminated without any separate measure, such as dismissal, etc. of the employer. However, even in a case where a written employment contract is prepared with a fixed term of time, the contents of the contract and the motive and circumstance leading up to the formation of the contract, such as where the period of a short-term employment contract is repeated over a long period of time, etc., the purpose and period of the contract, the purpose of setting the period, the length and frequency of the contract, practices on the conclusion of the same kind of employment contract as at the time of employment, and the rules on the protection of workers, etc., if it is deemed that the fixed term of a contract is merely merely a form of a contract without a fixed term of time, notwithstanding the terms and conditions of the contract, it is invalid as in the case of dismissal (see, e.g., Supreme Court Decision 2007Du4264.

Examining the reasoning of the judgment of the court of first instance cited by the court below based on such legal principles, the court below held that since Defendant Intervenor and Nonparty (hereinafter “ Intervenor et al.”) entered into an employment contract with the Plaintiff Company, it is merely justifiable for the Plaintiff Company to contract the Plaintiff Company to do so, and the Plaintiff Company has been engaged in the labor contract renewal on three occasions without any particular issues until the Plaintiff Company’s policy to abolish the Plaintiff Company’s department is established. The Plaintiff Company, upon signing an employment contract with the Intervenor et al. to renew the contract without any particular discussion as to the working conditions of the Plaintiff Company, made efforts to improve the contract with the Plaintiff Company to ensure that the Intervenor et al.’s employees would continue to renew their employment contract with their expertise and to have been expected to renew their employment contract by taking into account the fact that it is difficult for the Intervenor et al. to determine that the Plaintiff Company’s refusal of employment contract was merely justifiable in the form of a new employment contract with the Plaintiff Company’s employees, etc., and it is also difficult for the Intervenor et al. to do so with any other changes in the contract terms and conditions.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)