Whether the agreement on the refund of overseas dispatch expenses violates Articles 21 and 24 of the Labor Standards Act, where an employee fails to work for a certain period of time;

When an employee dispatched overseas for a period of five years or more from the date of returning to Korea, the provision that an employee compensates for all expenses incurred in the dispatch and other damages shall be paid for the employee who received education abroad, and where the employee retires without working for an agreed period after returning to Korea, the expenses actually spent shall be returned to the employer, but where the employee works during the agreed period, it shall be exempted from such payment. Such an agreement is not an agreement of penalty or liquidated damages as prohibited under Article 24 of the Labor Standards Act. Therefore, the working period of five years or more as seen above shall be deemed to have set the exemption period of the obligation to return expenses, not the employment contract period stipulated under Article 2

Articles 21 and 24 of the Labor Standards Act

Supreme Court Decision 72Da2565 delivered on January 28, 1974, 80Da590 delivered on July 8, 1980

Plaintiff Company

Defendant

Sungdong Branch Court of Seoul District Court (78Gahap972)

The original judgment shall be revoked.

The defendant shall pay to the plaintiff 13,303,408 won with an annual interest rate of 5 percent from April 29, 1978 to the date of full payment.

All the costs of lawsuit shall be borne by the defendant in the first and second instances.

The judgment and provisional execution declaration like the order are sought.

1. The defendant company established Gap evidence 7 (Employment Rules), Gap evidence 8-2 (Fidelity Guarantee Insurance Policy), Gap evidence 9-1, 2-10 of Gap's 10, and Gap evidence 5 (Written Pledges) which are presumed to have been established as a whole due to the testimony of the non-party 1, Eul evidence 2 (Guidelines Guidelines for Duty of Dispatch) which are presumed to have been established as a whole, Eul evidence 3 (Guidelines for Duty of Dispatch), Eul evidence 4-2 (Insurance Fee and Daily Payment Table), 3 (Account for Duty of Dispatch), 3 (Account for Duty of Dispatch), and 9-2 (Written Request) which are related to the above defendant company's above's employment. The defendant company did not dispatch the plaintiff company's employees to the non-party 2 for the same purpose as the above defendant company's above 9-1, 1975 and 2's testimony. The defendant dispatched the plaintiff company's employees to the non-party 16-party 1, 1975.

2. If so, the defendant is obligated to compensate the plaintiff for all of the expenses required under the above Guidelines for the Work Period of the Dispatcher (hereinafter referred to as this case's provision) unless there are other special circumstances, and the defendant is dissatisfied with this for the following reasons.

(A) First, the defendant was employed as an employee of the non-party company as mentioned above and did so as to be an employee of the non-party company. On the contrary to the intention of returning to Korea, the above non-party company transferred the defendant to the plaintiff company as its own employee. This constitutes a violation of working conditions entered into between the non-party company and the defendant, or an unfair labor practice, and on the ground that the defendant's non-compliance with the contract period is not responsible for the non-compliance with the above non-compliance, the non-compliance with the above non-party company is not justified. However, according to the evidence and the whole purport of oral argument, the non-party company purchased the above non-party company's securities transfer to the non-party company on behalf of the above non-party company and the non-party company's non-compliance with the above non-party company's non-compliance with the above non-compliance with the defendant's request for the above non-party company's non-compliance with the above non-party company's non-compliance with the defendant's non-compliance with the above non-party company's non-compliance.

(B) Second, the defendant could not have forced the plaintiff company to work and forced the plaintiff company to go out of the country after he had worked for the plaintiff company after his return, and even he had a living like the military team. This is because there was a little difference between the working conditions provided independently when he was employed for the non-party company, and thus the defendant cancelled the labor contract with the plaintiff company on this ground. However, according to the non-party 1's testimony of the non-party 1, the defendant's claim for this case is unjustifiable. However, according to the non-party 1's testimony, it can be acknowledged that some of the members of the plaintiff company including the defendant were living in the plaintiff company's workplace of the plaintiff company of the plaintiff company of the defendant company of the defendant company, such as the defendant's head of the defendant, but there is no evidence to acknowledge that the above dormitory was forced to live or required to act as the defendant's head of the defendant. Thus, the defendant's defense that the plaintiff was forced to go out without complying with the duty period

(C) Third, the defendant's provision of this case is reasonable to regard the claim of this case premised on the validity of the provision of this case because it violates the provisions of Article 21 of the Labor Standards Act and Article 24 of the same Act that the term of this case does not exceed one year in principle, and thus the provision of this case does not enter into a contract which stipulates the penalty or damages for non-performance of the labor contract. Thus, it is reasonable to say that the purpose of the provision of Article 24 of the above Act is to prevent the employer from unfairly compelling the employment relationship to continue, and that the above provision of this case is to prevent the employer from unfairly compelling the employment relationship. Thus, the defendant's overseas training of the above recognition is not against his will, and since the above provision of this case is not valid for the plaintiff's 25 members dispatched overseas as the defendant under the above agreement, the defendant's provision of this case's provision of this case is not valid for the remaining 24 years in consideration of the fact that the above provision of this case is currently in force until the plaintiff company's remaining excluding the defendant, and the above provision of this case's provision of this case is invalid.

(D) Fourth, the defendant argues that the above recognition agreement was made against the non-party company, and thus the plaintiff company did not have its effect, but the plaintiff company succeeded to all the rights and obligations under the labor contract to the non-party company with the defendant's consent, as seen earlier, is without merit.

(E) Lastly, the defendant's obligation to return the above expenses should be in proportion to the period of non-service, even if he had the duty to return the expenses, and in the case of the defendant who has worked for 1 year and 5 months, he does not have the duty to pay a considerable amount of 17/60 of the total expenses. Thus, according to the provisions of this case, it is only a provision that he/she shall be exempted from all of his/her obligation to repay the expenses once when he/she worked for 5 years, and there is no ground to exempt the above obligation in sequence in proportion to the period of service, and there is no other evidence to acknowledge it otherwise, the above defense is without merit.

3. Accordingly, the defendant is obligated to pay damages for delay in civil affairs from April 29, 1978 to March 5, 1978 that the plaintiff was the plaintiff, and the non-party company and the plaintiff company are obligated to pay damages for delay in civil affairs at the rate of 5 percent per annum from April 29, 1978 to the full payment date, since the court below dismissed the plaintiff's claim on the ground that it is unfair because the court below dismissed the plaintiff's claim on the ground that the plaintiff's appeal was just, and therefore, the costs of lawsuit shall be revoked and the provisional execution shall be exempted, and it shall be ordered that the plaintiff's provisional execution shall be exempted.

Judges Kim Sang-won (Presiding Judge) Lee Jong-young