[1] The validity of the employer's refusal of the renewal of an unfair labor contract against the right to expectation in a case where the right to expect the renewal of the labor contract is recognized as a legitimate right to the worker who entered into the labor contract with a fixed period of time

[2] Whether legitimate expectations for renewal of fixed-term workers formed before enforcement of the Act on the Protection, etc. of Fixed-term and Part-Time Workers are excluded or restricted (negative)

[1] Article 23 of the Labor Standards Act / [2] Article 4 (1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

[1] Supreme Court Decision 2007Du1729 Decided April 14, 201 (Gong2011Sang, 925) Supreme Court Decision 2009Du2665 Decided July 28, 201 (Gong2011Ha, 1794) Supreme Court Decision 2010Du8225 Decided June 14, 2012

Korea Railroad Corporation (A&S Law Firm, Attorneys Cho Young-ro et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 (Attorney Choi Sung-ho, Counsel for defendant-appellant)

Defendant 2 (Attorney Choi Sung-ho, Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu398 decided November 23, 2011

All appeals are dismissed. The costs of appeal by the Intervenor 2 are assessed against the Intervenor 2, and the remainder is assessed against the Plaintiff.

We examine the grounds of appeal.

1. Plaintiff’s ground of appeal

A. In principle, a worker who has entered into an employment contract for a fixed period shall naturally terminate his/her status as an employee upon the expiration of the fixed period and, if he/she fails to renew his/her employment contract, he/she shall automatically retire even if there is no declaration of refusal to renew the employment contract. However, in light of the various circumstances surrounding the employment contract, including the details of the employment contract, the motive and circumstances leading up to the renewal of the employment contract, the standards for renewal of the employment contract, the establishment of the requirements and procedures for renewal of the employment contract and the actual conditions thereof, and the contents of the work performed by the worker, if there is a trust relationship between the parties to the employment contract that the renewal of the employment contract would be possible if certain requirements are met, the employer's refusal to renew the employment contract in violation of the contract has no effect as it is unfair, and in this case, the employment relationship after the expiration of the term is the same as the renewal of the previous employment contract (see, e.g., Supreme Court Decision 2007Du1729, Apr. 14, 2011).

Meanwhile, Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “An employer may employ a fixed-term worker within the extent not exceeding two years (in cases of repeated renewal, etc. of a fixed-term employment contract, to the extent that the total period of continuous employment does not exceed two years)” under the proviso of paragraph (1) provides that “An employer may employ a fixed-term worker within the extent not exceeding two years,” and Article 4(2) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has concluded an employment contract without the fixed-term worker.”

As above, an employer may employ a fixed-term worker within a period of two years by the implementation of the Fixed-term Act, and even if the total period of employment of a fixed-term worker exceeds two years, if such fixed-term worker is deemed an employee without a fixed-term employment contract, the legislative purport of the above provisions is basically to guarantee the status of an employee by preventing abuse of a fixed-term employment contract, it cannot be deemed that the legitimate expectation right for renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract is excluded or restricted by the enforcement

B. The lower court acknowledged the facts as indicated in its reasoning. ① Article 7 of the Employment Contract for 2008, which the Plaintiff prepared with the Intervenor (hereinafter referred to as the “ Intervenor”), includes that the Intervenor’s work performance shall be regularly assessed every year based on his/her work performance and performance objectives; the Plaintiff actually conducted an evaluation of the above Intervenor’s work performance and reflects the points of the Intervenor’s annual salary when renewal of his/her employment contract is made; ② Article 17 of the Regulations on the Operation of Professional Staff of December 29, 2006, which was in force at the time of entering into an employment contract for 208, provides that the Intervenor’s work performance and performance record of the above Intervenor’s work performance shall be assessed once every one year after the contract was concluded, and that the Plaintiff’s refusal to renew his/her employment contract for 7 years on the premise that the Plaintiff would not have any legitimate right to renew the employment contract for 20 days or longer, and that the Plaintiff would not have any right to renew the employment contract for 20 days or more.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the right to

2. As to the Intervenor 2’s ground of appeal

After finding the facts as stated in its reasoning, the lower court determined that: (a) on May 2005, 2005, the Intervenor 2 planned and employed a contract term on the part of May 1, 2005 to conduct external services related to the implementation of the Plaintiff’s new personnel system; (b) the Intervenor was aware of such circumstances; and (c) the Intervenor was employed with knowledge of such circumstances; and (d) the Nonparty’s new personnel system services related to the introduction of the new personnel system came to fall short of the school condition without any particular progress; (b) the Plaintiff was refused to renew the contract; (c) one of the new personnel system-related services related to the new personnel system from July 200 to October 10 of the same year, the Plaintiff was scheduled to lawfully extend the contract term with the Intervenor for more than 1 year from May 2008 to its detailed period of implementation; and (d) it was reasonable to deem the Intervenor’s refusal to renew the contract term with the Intervenor at the time of signing the contract after the expiration of the contract term with the Intervenor.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal by the Intervenor 2 are assessed against the Intervenor 2, and the remainder are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)