The case recognizing the continuity of employment relationship where the street cleanerss under his/her control receive interim retirement allowances while engaging in the same business as the sanitary corporation changes from the Si to the Gu entrustment.

The case recognizing the continuity of employment relationship on the ground that it is difficult to view the receipt of retirement allowances as the retirement allowances is due to the intention of limiting the number of years of service due to the termination of the employment contract or the calculation of retirement allowances of street cleaners, where the street cleaners under his/her control receive interim retirement allowances while engaging in the same work at the time of change from the

Article 28 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gong1996Sang, 1681 et al., Counsel for plaintiff-appellant)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Lee Hun-Hun et al. (Law Firm Bupyeong General Law Office, Attorneys Seo Byung-ho et al., Counsel for the plaintiff-appellant)

Incheon Nam-gu Sanitary Corporation (Attorney Gyeong-dae, Counsel for the defendant-appellant)

1. The defendant shall pay 170,691 won to the plaintiff lag and 5 percent per annum from September 5, 1995 to July 2, 1996, and 25 percent per annum from the next day to the date of full payment.

2. All of the plaintiffs' remaining claims and remaining plaintiffs' claims are dismissed.

3. Of the litigation costs, the part arising between the plaintiffs Lee Hun-o, the performance house, the long-term wheels and the defendant shall be divided into five parts, and the part arising between the plaintiffs and the defendant shall be divided into five parts, and the remaining part shall be borne by the above plaintiffs and the defendant respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff Lee Do-Hun an amount equivalent to 6,633,878 won, gold 5,656,566 won, gold 7,902,411 won to the plaintiff's performance hall, gold 12,879,304 won to the plaintiff's long-term wheels, and the amount equivalent to 25 percent per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts can be acknowledged in full view of the whole purport of the pleading in each of the statements in Nos. 1, 2, 3 and 13-1 through 4 of Eul's 3-4, Eul's 1, Eul's 7-1, 2, 3, and Eul's 13-4, and there is no counter-proof otherwise.

A. The non-party Incheon Metropolitan City entrusted the disposal of garbage collection, road cleaning, etc. from the entire area of the Metropolitan City to the Incheon Sanitary Corporation. However, upon the full amendment of the Local Autonomy Act on April 6, 1988, as each of the Gu became a basic local government, the above duties were transferred to each Gu, and the cleaning agency is separately selected and the relevant Gu's garbage collection duties, etc. are performed on behalf of the Gu. The above Incheon Sanitary Corporation is divided into each Gu's hygiene Corporation in response to each Gu, and the above waste collection duties are performed on behalf of each Gu. The defendant company was established on October 20, 190 and entered into an entrustment contract with the Nam-gu Incheon Metropolitan City on the waste collection duties, etc., and the defendant company is dealt with with the general waste collection duties, road cleaning, etc. in the Namdong-gu, Seoul Metropolitan City.

B. While the Plaintiffs were employed in the foregoing Incheon Sanitary Corporation and were engaged in the same duties, the said Incheon Sanitary Corporation was divided into each of the respective units of the Gu, the Plaintiffs did not follow a separate procedure of retirement and re-admission from January 1, 1991, and were replaced by the Defendant Company’s street cleaners. However, during the process, the Plaintiffs were retired from the same duties without being assigned to a position or change of duties.

C. However, the plaintiffs (attached Form 2) received the total amount of 3,645,40 won, the total amount of 2,819,385 won, the Plaintiff’s her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her.

2. Plaintiffs and Defendant’s assertion

A. Regarding the continuous service period in calculation of retirement pay

The plaintiffs were employed after joining the above Incheon Sanitary Corporation as stated in [Attachment 2] and changed from January 1, 191 to street cleaners belonging to the defendant company. At the time of working in the above Incheon Sanitary Corporation or the above Incheon Sanitary Corporation received interim retirement allowances on several occasions in the process of changing their employees to the defendant company, but this received them without undergoing retirement and re-admission procedures. Thus, such receipt of retirement allowances cannot be deemed an interim retirement, and even if it can be viewed as an expression of intention of interim retirement, it can be viewed as a false agreement between the plaintiffs and the defendant company, or even if the defendant company knew, it does not have the effect of interim retirement. Thus, since the defendant company's continuous employment period from the date of initial employment to the date of retirement from the above Incheon Sanitary Corporation as stated in [Attachment 2] to the date of retirement from the above Incheon Sanitary Corporation, the defendant company is entirely different from the above other corporation, and even if the above company actually received retirement allowances from the above Incheon Sanitary Corporation, it is not recognized that the retirement allowances from the defendant 19th to the above company should be determined to the retirement period.

B. As to the retirement pay system and the calculation of the number of years of service in the military service

The plaintiffs argued that the contents of wages and retirement allowances of the above Incheon Sanitary Corporation, including the plaintiffs, or the defendant's street cleaners have been applied without any negotiation between labor and management as a result of the agreement between the National Federation of Trade Unions and the government. On November 23, 1991, for those who have served for more than five years as a result of the agreement between the non-party union union of the Republic of Korea and the government on the improvement of the treatment of street cleaners on January 1, 1992, the amount calculated by adding 50% to the basic retirement allowances shall be paid as retirement allowances from January 1, 1992 and the amount calculated by adding 50% to the basic retirement allowances shall be paid as retirement allowances from December 23, 1994 according to the agreement on the improvement of the treatment of street cleaners around December 23, 1995. Accordingly, the defendant asserted that the military service period was changed from the above service period from the date of 195 to the above service period (one year old and two years old).

C. As to the calculation of average wages

The plaintiffs asserted that when the defendant company retires from the defendant company, the defendant company did not include family allowances out of the wages paid to the above plaintiffs for three months prior to the retirement, and that the above plaintiffs calculated retirement allowances.

D. Unpaid retirement pay claimed by the plaintiffs

Ultimately, the plaintiffs claim that the defendant is obliged to pay the plaintiffs' retirement allowances (attached Form 2) to the plaintiffs, the interim retirement allowances and retirement allowances (attached Form 2), which the plaintiffs received from the above Incheon Sanitary Corporation and the defendant company (attached Form 2), and the remaining amount (attached Form 2) which the defendant company deposited (attached Form 2) for the plaintiffs (attached Form 2) (attached Form 2) as unpaid retirement allowances.

3. Determination

A. Regarding the continuous service period in calculation of retirement pay

In light of the purport of Gap evidence 1-1, 2, Gap evidence 2, 3, and 4-1 to Eul evidence 5-2, Eul evidence 7-1, 2, 3-1 to Eul evidence 7-1, 15-1, 3, and Eul evidence 15-4, the non-party sanitary corporation or defendant company concluded a contract for the collection of garbage with the Incheon Metropolitan City or Nam-gu on a yearly basis, and the amount of money equivalent to the above retirement allowance is calculated by including the amount of retirement allowance from 1, 2, 3, and 9-1 to 9-2 of the above interim retirement allowance from 197 to 9-2 of the above interim retirement allowance from 1, 1974, and the above interim retirement allowance has not been paid to the non-party 1 to the non-party 4 of the Incheon Metropolitan City Council because it did not have any possibility that the above interim retirement allowance would be paid to the non-party 1 to the non-party 9-1, 1974 of the agreement.

According to the above facts, even if the plaintiffs worked as the above Incheon Sanitary Corporation and they were changed to the defendant's street cleaners, they should be deemed to have worked continuously without changing their work or status. However, the receipt of interim retirement allowances from the time of the above Incheon Sanitary Corporation's trade union as stated in [Attachment 1] is due to the plaintiffs' request, and even if the plaintiffs did not actually take the procedure of retirement and re-employment, it is reasonable to view that the labor contract between the plaintiffs and the above Incheon Sanitary Corporation was terminated at least once the above retirement allowance was received, and it was actually agreed or agreed to start the period of service again from the time when the above retirement allowance was received. However, since 1983, it is difficult to calculate the retirement allowance from the above Incheon Sanitary Corporation's annual retirement allowance without paying the interim retirement allowance, and it is difficult to say that the plaintiff's first agreement on the payment of interim retirement allowance from the above 198 years to the retirement worker's retirement allowance or the retirement allowance for which the plaintiff's retirement allowance was paid to the plaintiff 198 years after the above.

B. As to the retirement pay system and the calculation of the number of years of service in the military service

Comprehensively taking account of the overall purport of arguments as to Gap evidence 1-1, 2, and Eul evidence 1-1 and 2-A, the South-dong Sanitary Labor Union, which belongs to the plaintiffs, has concluded a collective agreement on the above remaining-dong and wage and retirement allowances every two years based on the proposal for the improvement of treatment for members of the environmental unified labor union negotiating with the government. The above national union's annual union of November 23, 1991, which included the improvement of the retirement allowance system by adding 50% to the retirement allowance (average wage x re-employment x 150/100) which includes the improvement of the retirement allowance system by providing the above 192 guidelines for the improvement of the treatment of members of the company's voluntary employees x 190 years old and later than 15 years old and later than 19 years old and later than 2 years old and later than 19 years old and later than 19 years old and later than 19 years old and 2 years old, respectively.

According to the above facts and the above facts, the plaintiffs' retirement allowance system or service period calculation system is applied to the plaintiffs as of January 1, 1992, and they do not retire from service for more than five years, and since the collective agreement with the content that military service period is included in the service period is not yet concluded, the plaintiffs' above improvement system cannot be viewed as being subject to the above improvement system (the plaintiffs' assertion that the above collective agreement becomes null and void as a matter of course, even if the above collective agreement was concluded between the defendant company and the above trade union without any separate collective agreement between the government and the above trade union upon confirmation of the improvement of treatment for members of the environment-unifiedd union which the union of the Union has negotiated with the government, the above improvement plan is applied without any separate collective agreement between the defendant company and the above trade union.

Meanwhile, at the time of the conclusion of the collective agreement, the plaintiffs argued that the non-party Kim Jong-sik, the chairman of the labor union of the defendant company at the time of the conclusion of the collective agreement, was mistakenly aware on January 1, 1991 at the time when the plaintiffs' affiliation was changed to the street cleaners of the defendant company, and agreed on January 1, 1992 to make the job-based date which serves as the basis for the progressive retirement pay system, but there is no evidence to acknowledge it, and therefore, the plaintiffs' assertion

C. As to the calculation of average wages

In full view of the whole purport of the pleadings in the statements as set forth in the evidence Nos. 3 and 4-1, 2, 3, and 5-1 through 4 of the evidence Nos. 15-1 to 15 of the evidence Nos. 15 of the evidence Nos. 3 and 4 of the above plaintiffs, the defendant company at the time when the defendant company retires from the defendant company, shall not include the amount of KRW 90,000 for family allowances received by the plaintiff Lee Jae-o in the wages paid to the above plaintiffs for the three months prior to the retirement of the defendant company, KRW 45,00 for family allowances received by the plaintiff, KRW 45,00 for family allowances received by the plaintiff Lee Jae-o in the previous three months, and KRW 45,00 for family allowances received by the long-term wheels of the plaintiff company, and there

D. Sub-committee

Therefore, in the retirement allowance (attached Form 3) for which the plaintiffs have worked as the street cleaners of the defendant company from January 1, 1983 to the retirement date stated in [attached Form 3], the defendant has a duty to pay the plaintiffs an interim retirement allowance (attached Form 3) received from the non-party Incheon Sanitary Corporation or the defendant company (attached Form 3), and the remaining amount (attached Form 3) after the amount (attached Form 3) deposited by the defendant who seeks the plaintiffs' own deduction for the plaintiffs (attached Form 3).

4. Conclusion

Therefore, the defendant is obligated to pay the plaintiff's unpaid retirement allowance at the rate of 5% per annum from September 5, 1995 to July 2, 1996, and 25% per annum from the following day to the full payment date, which is the day after the delivery date of the copy of the complaint in this case, as stated in the attached Form 3, to the plaintiff's pregnant status (attached Form 3) and the day after September 5, 1995, which is obviously considered appropriate for the defendant to dispute about the existence or scope of the obligation. Thus, the defendant is obligated to pay damages for delay at the rate of 170,691 won as stated in the records. Thus, the claim in this case of the plaintiff's pregnant status shall be accepted within the above scope of recognition, and the remaining claims of the plaintiff and the remaining claims of the plaintiffs shall be dismissed without any justifiable reasons (attached Form omitted).

Judges Lee Hong-hoon (Presiding Judge)