Is a clause promising a job to the family of a worker killed in an industrial accident void as against public morals? Decision 2016Da248998 and the 'special circumstances' that override a collective agreement

Question

Article 103 of the Civil Act provides that an act whose content is contrary to good morals and other social order is void. A collective agreement is the product of collective bargaining between a trade union and an employer, and Articles 31, 33 and 92 of the Trade Union and Labour Relations Adjustment Act give it written form, normative force and, for certain matters, criminal enforcement. The question is whether such an agreement falls under Article 103 at all, and if so when a clause giving the family of a member killed in an industrial accident a right to special hiring is contrary to good morals and other social order.

Decision 2016Da248998 raises that question for the 'special hiring clause for survivors of industrial accidents' in the collective agreements of Kia Motors Corporation and Hyundai Motor Company. The plaintiffs are the children and co-heirs of an employee who died of acute myeloid leukaemia recognised as an occupational disease. Plaintiff 1, relying on that clause, sought a declaration of acceptance of an offer of an employment contract, primarily against Kia Motors Corporation and alternatively against Hyundai Motor Company, and the plaintiffs also claimed damages from Kia Motors Corporation on the ground that it breached the duty of safety and caused the deceased's death. The Seoul High Court held the clause void; the Supreme Court sitting as a full bench reviewed that ruling.

Material to check

The statutes are Article 103 of the Civil Act, under which an act contrary to good morals and other social order is void, and Articles 31, 33 and 92(2)(iv) of the Trade Union and Labour Relations Adjustment Act, which require a collective agreement to be in writing and filed within 15 days, allow the administrative authority to order correction of unlawful content with a resolution of the labour commission, make rules of employment or contract terms violating the standards set by a collective agreement void and fill gaps with those standards, and impose a fine of up to 10 million Korean won for breach of matters on 'safety and health and disaster relief'. The decision also relies on Constitution Articles 15, 23(1), 32(6), 33(1) and 11(1), and on the Labor Standards Act and the Industrial Accident Compensation Insurance Act as the framework of the employer's compensation duty.

The decisions are Decision 2016Da248998 (27 August 2020, full bench) itself and Decision 2016Da249557 (8 June 2017), cited in a claim for damages for non-performance of an obligation for the rule that findings on contributory negligence or grounds for limiting liability, and the proportion set, are within the fact-finding court's discretion unless manifestly unreasonable. The dissenting opinion cited Decisions 2008Da38288 (22 April 2010, full bench) and 2009Da19864 (27 January 2011) on the indirect effect of fundamental rights in private relations. Justice Kim Jae-hyung's supplementary opinion cited Decisions 2003Du896 (9 September 2005), 2016Da26532 (22 March 2017), 92Da14786 (28 July 1992), 2007Da18584 (14 December 2007), 2005Da23858 (28 July 2005) and 81Daka351 (13 October 1981, full bench).

Possible readings

The majority opinion gives the first reading: a collective agreement cannot be excluded from Article 103, so if its content is contrary to good morals and other social order its legal effect must be denied. Yet the court must be more cautious in its tutelary intervention, because the agreement follows from the exercise of the collective bargaining right guaranteed directly by the Constitution, is the product of the collective autonomy of labour and management that the Constitution guarantees institutionally, and its performance is specially compelled by the Trade Union and Labour Relations Adjustment Act.

A second reading follows from the employer's freedom to decide which workers to hire by which criteria and methods, grounded in Constitution Article 15 and Article 23(1). That freedom may be voluntarily restricted by a collective agreement on hiring, effective unless it violates mandatory statutes or good morals and other social order. Such a clause is a self-binding promise made by the employer's own will, not state compulsion, and cannot be presumed contrary to public morals unless special circumstances exist: that it excessively restricts the employer's freedom to hire or markedly impairs the fairness of hiring opportunities. Whether they exist is judged comprehensively in the light of the reason for and circumstances of the agreement, the suitability of purpose and means, the requirements for the candidate, similar rules of employment at the workplace, the duration of the agreement and compliance with it, and the form of hiring and the number hired, showing the impact on general hiring and the disadvantage to job seekers.

A third reading is the dissent of Justices Lee Ki-taek and Min Yu-suk, who would hold the clause void. Measures to protect the families of workers who die in industrial accidents must be genuinely fair and conform to the legal order, and must neither sacrifice job seekers in urgent need of work nor protect only some survivors. Where labour and management agree on hiring criteria unrelated to the company's needs or the candidate's ability, and these discriminate against job seekers or other members without reasonable cause, going beyond the sense of justice on fair hiring and the legal order, the act may fall under the social order of Article 103; the dissent cited Decisions 2008Da38288 and 2009Da19864.

What the decisions held

The Supreme Court set aside the part of the judgment below on Plaintiff 1's losing claim for a declaration of acceptance of the offer against the defendants and remanded that part to the Seoul High Court, dismissed the remainder of Plaintiff 1's appeal and the whole of Plaintiff 2's appeal, and ordered Plaintiff 2 to bear the costs of that appeal. The majority held that the special hiring clauses were not contrary to good morals and other social order and were not void, and that the court below had misunderstood the principle of collective autonomy and the law of Article 103. Apart from the dissent on the clause's effect, the judges agreed, with supplementary opinions from Justice Kim Jae-hyung and Justices Kim Sun-su and Kim Sang-hwan.

The court below had held the clause void because it markedly restricted the employer's freedom of contract, produced the handing down of jobs, ignored the survivors' need of livelihood and any job qualifications, and imposed a hiring duty uniformly. The majority weighed six circumstances against that view. Compensation for an industrial accident is itself an important working condition, and the clause resulted from bargaining over additional compensation. It protects a socially weak group and is an effective and appropriate means of compensation and protection, mirroring at company level Constitution Article 32(6) and statutes giving employment support to persons of national merit and their families. It is a self-binding promise, applying only in the rare case of death from an industrial accident and only to candidates without disqualifications. It has been included since the mid-1990s, renewed at each round of bargaining, mirrored in Kia's personnel rules (Article 7(4)(iv)), and put into practice: the decision states that under the clause Kia hired 9 survivors and Hyundai 52, and that Kia hired 2 survivors in 2016 while this case was pending. Against a workforce of about 35,600 at Kia and over 70,000 at Hyundai as at the end of 2019, hiring under the clause was 5 of 5,281 new hires at Kia between 2013 and 2019 (about 0.094%) and 11 of about 18,000 at Hyundai (about 0.061%), through a separate special procedure rather than priority in open competitive recruitment. No excessive restriction of the freedom to hire and no serious disadvantage to job seekers therefore appeared.

In the claim for damages for non-performance of an obligation, the decision separately upheld the court below's findings on contributory negligence and the proportion of liability limitation, applying the rule of Decision 2016Da249557 that in such a claim those findings are within the fact-finding court's discretion unless manifestly unreasonable.

Points left open

The decision gives factors for weighing 'special circumstances' but no threshold. It does not say how small a workforce or how high a share of hiring under such a clause would amount to an excessive restriction, nor how the test would apply where a clause gives priority or added points within open competitive recruitment rather than a separate procedure.

The fate of clauses favouring the children of retiring or long-serving employees is contested within the decision. The dissent argued that the majority's reasoning would equally validate such clauses and had been led by a good purpose into protecting provisions criticised as passing jobs down the family line. Justice Kim Jae-hyung's supplementary opinion treated the survivor clause as clearly distinct because it fixes an additional compensation method other than money. The decision leaves this unresolved.

When to reconsider

We revisit this brief if the Supreme Court rules on the validity of a priority or added-points hiring clause for the families of retiring or long-serving employees, if a later decision sets a threshold for 'special circumstances' or applies the test to a small employer or a professional recruitment market, if the judgment on remand addresses whether an employment contract was concluded, or if Article 103 of the Civil Act or Articles 31, 33 or 92 of the Trade Union and Labour Relations Adjustment Act are amended.

Statutes referred to

• 헌법 제11조, 제15조, 제23조, 제32조, 제33조
• 민법 제103조
• 노동조합 및 노동관계조정법 제31조, 제33조, 제92조

Decisions referred to

• 대법원 2020. 8. 27. 선고 2016다248998 전원합의체 판결 · Decision ledger

Verification status

All texts read for this brief were read at the National Law Information Center on 24 October 2026: the decision in its published holdings, summary and full reasons, the current text of the articles it cites, and the decisions it cites as they appear in those reasons. The decision restates the standard of Article 103 of the Civil Act in words of its own rather than quoting the article.