Can a worker still ask the court to confirm employee status once the retirement age has passed? Supreme Court Decision 2021Da229588 on 'confirmation interest'

Question

Article 250 of the Civil Procedure Act provides that 'an action for confirmation may be brought also to establish whether a document that proves a legal relationship is genuine'. The declaratory action is therefore a defined remedy, and the question is when a party may use it: what interest in a declaration must a claimant have before the court will hear the claim, and can that interest be lost while the case is still pending?

Decision 2021Da229588 puts the question for Plaintiff 1, who joined the contractor, whose name is masked in the published judgment, on 26 May 2000, worked at the defendant Sampyo Cement Co., Ltd.'s mines, served as head of the limestone process at Mine 46 in charge of personnel management and production consultation and work placement with the defendant, and left on 31 March 2015. He claimed that he had been deemed employed by the defendant under the former Act on the Protection of, etc., of Dispatched Workers, asked for confirmation that he held worker status with the defendant, and claimed damages for wage discrimination from October 2013 to March 2015. The Seoul High Court (Chuncheon) allowed the confirmation claim in its judgment of 9 April 2021 (2020Na1078); the Supreme Court took the point of its own motion, because confirmation interest goes to whether the action is proper at all.

Material to check

The statute cited for this point is Article 250 of the Civil Procedure Act, set out above, which allows an action for confirmation to be brought to establish whether a document proving a legal relationship is genuine. The decision also cites former Article 2(7) and Article 21(1) of the Act on the Protection of, etc., of Dispatched Workers (as in force before its amendment by Act No. 16413 of 30 April 2019) and former Article 6(3) of the same Act (as in force before its amendment by Act No. 8076 of 21 December 2006); the texts read for this brief give no text for these former provisions. Articles 393, 750, 763 and 766 of the Civil Act and Article 179(1)(5) of the Debtor Rehabilitation and Bankruptcy Act support the decision's other holdings on damages and rehabilitation claims, which this brief does not address.

The decisions are Decision 2021Da229588 and the two it cites on this point. Decision 91Da1264 (11 October 1991) sets out the requirements of confirmation interest and adds that, where an action for performance is available, a declaratory action has no confirmation interest absent special circumstances. Decision 2016Da40439 (28 July 2022) states the same requirements and, on its own facts, upheld a finding that a dispatch relationship existed between a steelworks and crane operators engaged through its contractor. The decision cites further precedents on its other holdings, among them Decision 2016Da239024 (14 May 2020), whose text could not be opened.

Possible readings

Read with Decision 91Da1264, Article 250 of the Civil Procedure Act shows the declaratory action as a remedy that is not available simply because a claimant prefers it. Confirmation interest exists where there is an existing anxiety or risk in the party's rights or legal position and obtaining a declaratory judgment is the most effective and appropriate means of removing it. Both conditions must be met.

The same precedent narrows the remedy further: where an action for performance can be brought, an action for confirmation, absent special circumstances, does not remove the anxiety effectively and runs against economy of litigation, so there is no confirmation interest. A claimant who can claim performance must therefore ordinarily claim it, and a declaratory claim is subsidiary to that.

Decision 2021Da229588 shows that the interest is not fixed once and for all when the action is filed. It found that the claim 'became improper for want of confirmation interest', because the claimant's retirement age had arrived while the appeal was pending, and it raised the issue of its own motion rather than leaving it to the defendant's arguments. On the decision's reasoning, the question is whether the declaration still serves its purpose at the time the court decides it.

What the decisions held

Supreme Court Decision 2021Da229588 (27 April 2023) held, taking the point of its own motion in respect of Plaintiff 1's claim to confirm worker status, that the claim lacked confirmation interest. The Court recorded that from 2016 onwards the defendant's rules of employment and the like set the retirement age at the last day of the year in which the employee turns 60, so it was plain that Plaintiff 1 reached his retirement age on 31 December 2022 while the Supreme Court appeal was pending. On that footing a declaration that he still holds worker status with the defendant could no longer be the most effective and appropriate means of removing anxiety or risk in his existing rights or legal position.

The Court set aside the appellate judgment in that part, cancelled the first-instance judgment in that part, and dismissed that action itself, holding that it could decide the point directly. It dismissed the defendant's appeal against Plaintiff 2 and the remainder of its appeal against Plaintiff 1, and ordered the defendant to bear the whole costs of the litigation between itself and Plaintiff 1 and the appeal costs between itself and Plaintiff 2. As to the rest, the Court affirmed the Seoul High Court (Chuncheon), which had found a dispatch relationship between the plaintiffs and the defendant, had allowed the damages claims for wage discrimination and had allowed Plaintiff 1's confirmation claim on the basis of deemed employment. The Supreme Court upheld the appellate finding that a dispatch relationship existed between Plaintiff 1 and the defendant and found no error in the damages judgments; only the claim to confirm worker status was disposed of on confirmation interest, so no declaration of employee status was made.

Points left open

The decision does not state the point of time at which confirmation interest is to be tested as a general rule. It found that the retirement age arrived while the appeal was pending and that the claim had thereby become improper, but it did not say whether the interest is judged at the date of filing, at each instance, or only at the final decision, nor what follows where the retirement age has not yet arrived.

Decision 91Da1264 preserves an exception for 'special circumstances' where an action for performance is available, and Decision 2021Da229588 does not say what those circumstances are. It also leaves open which remedy remains for a worker in Plaintiff 1's position: the Court upheld the appellate finding of a dispatch relationship between Plaintiff 1 and the defendant, but it made no declaration of employee status and did not address what other relief, if any, the passing of the retirement age leaves available.

When to reconsider

We revisit this brief if the Supreme Court states the point of time at which confirmation interest is tested, if a later decision fills the 'special circumstances' exception of Decision 91Da1264, or if Article 250 of the Civil Procedure Act is amended.

Statutes referred to

• 민사소송법 제250조
• 구 파견근로자 보호 등에 관한 법률 제2조, 제21조, 제6조
• 민법 제393조, 제750조, 제763조, 제766조
• 채무자 회생 및 파산에 관한 법률 제179조

Decisions referred to

• 대법원 2023. 4. 27. 선고 2021다229588 판결 · Decision ledger
• 대법원 2022. 7. 28. 선고 2016다40439 판결
• 대법원 1991. 10. 11. 선고 91다1264 판결

Verification status

All texts were read at the National Law Information Center on 24 October 2026: the decision in its published headings, holdings and reasons, the current text of the articles it cites, and the published holdings and summaries of the precedents whose text is given in the texts read for this brief. Decision 2016Da239024 (14 May 2020) is cited by the decision but its text could not be opened, so nothing is stated here about its content.