The case holding that it is difficult to view that the submission of a written resignation by an employee was based on the internal intent to terminate the existing labor contract relations or to limit the number of years of continuous service, because there is a system that pays interim retirement allowances under the policy to change the retirement allowance payment rate after the retirement measures from the progressive system to the short-term retirement pay system, and it is difficult to view that it was based on the internal intention to cancel the existing labor contract relations or to limit the number of years of continuous service.

The case holding that it is difficult to conclude that the submission of a written resignation by an employee was based on the internal intent to terminate the existing labor contract relations or to limit the number of years of continuous service, because there is a system that pays interim retirement allowances under the policy to change the retirement allowance payment rate after the retirement measures from the progressive system to a single-off system, and it is difficult to conclude that it was based on the internal intention to cancel the existing labor contract or to limit the number of years of continuous service.

Article 107 of the Civil Act, Article 28 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 2 others, Counsel for plaintiff-appellant)

[Defendant-Appellant] Plaintiff et al., Counsel for defendant-appellant

Attorney Hong-chul, Counsel for the plaintiff-appellant-appellant

Seoul High Court Decision 90Na5667 delivered on October 10, 1990

The case shall be reversed and remanded to the Seoul High Court.

As to the Grounds of Appeal

1. Based on its evidence, the court below acknowledged that the plaintiff was retired on October 1, 1975 (10.29 of the original judgment) when he was employed by the defendant company as security guards on February 6, 1967 (10.29 of the same year) and that the plaintiff was retired from the defendant company No. 1 and No. 2 (10.1 of the original judgment). The first member's retirement was disposed of as of October 30 of the same year, and the second member's retirement was disposed of as of March 25 of the same year, and the second member's retirement was disposed of as of June 2 of the same year after the second member's retirement was disposed of as of March 25, 1978, and the first member's retirement certificate No. 1 and the second member's retirement certificate No. 4 were submitted to the defendant company as of January 15, 1985 (200's testimony and correction of the first member's retirement certificate).

2. However, the expression of intention refers to an expression of intention without any internal intent corresponding to the intention of effect. Even if the Plaintiff’s act of submitting a resignation in this case was voluntarily conducted, it cannot be determined that the Plaintiff had the intention of internal deliberation as to the termination of the labor contract relationship, as a matter of course, to deem that the effect of resignation can only be recognized.

The court below also invoked Gap's evidence 10-14, 16, 18, 19, 21 (each collective agreement) as well as Eul's evidence 12-1, 2 (agreement 12-2) as well as non-party 3's testimony which is invoked by the court below, as the court below's ruling, the defendant company submitted a resignation notice from Gap's general service class members from July 1, 1976 to reduce the heavy amount of retirement pay due to the short-term retirement pay from Gap's general service class members, and instead of the long-term service year starting from the date of re-employment, it is difficult to apply the two-year retirement allowance rate to Gap's general service class employees to the non-party 13's non-party 3's non-party 3's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's interim retirement agreement.

3. If so, the court below should have deliberated on whether the defendant company terminated the existing employment contract relationship instead of paying interim retirement allowances to employees, and changed the starting point itself of the number of years of continuous service by concluding a new employment contract, or whether the existing employment contract relationship has maintained as it is and tried to change only the retirement allowance payment rate from the progressive to the fractional system, but it did not fulfill it, or it did not err in the misapprehension of the rules of evidence, which affected the conclusion of the judgment by violating the rules of evidence. Therefore, the argument pointed out this point is with merit.

Therefore, the original judgment shall be reversed, and the case shall be remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Young-young (Presiding Justice)