Open Decision Ledger · Labour & industrial accidents
Forced resignation in accepted form as dismissal
Supreme Court, Oct. 31, 2019, 2019Da246795 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 임금
Official text on the National Law Information Center
Question
Does ending an employment relationship through the form of a voluntary resignation accepted by the employer amount to a dismissal under Article 23(1) of the Labour Standards Act where an employee who has no intention of resigning was made to write and submit a resignation letter against their will?
Holding
It does. 'Dismissal' in Article 23 of the Labour Standards Act means every termination of an employment relationship that is done against the employee's will by the employer's unilateral will, regardless of the name or the procedure used in the workplace. Where the substance is that the employer's unilateral will made employees who had no intention of resigning quit, the relationship was ended by dismissal even though, in form, the employees appeared to have left of their own accord.
Points at issue, verbatim
비록 형식적으로는 을 등이 자진하여 식당을 그만둔 것처럼 보일지라도, 실질적으로는 갑의 일방적 의사에 의하여 사직 의사가 없는 을 등으로 하여금 어쩔 수 없이 사직하게 하여 근로계약관계를 종료시킨 것이므로 해고에 해당한다고 보아야 하는데도, 이와 달리 본 원심판단에 법리오해의 위법이 있다고 한 사례
Unofficial English translation
Although formally it may appear that B and the others voluntarily left the restaurant, in substance A, by his unilateral decision, caused B and the others, who had no intention of resigning, to have no choice but to resign and thus terminated the employment relationship, so that it must be regarded as a dismissal, and yet, notwithstanding this, the determination of the court below to the contrary was erroneous as a misapprehension of legal principles
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 춘천지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main court of Chuncheon District Court.
Form of the test
Elements stated Stated in the decision
근로기준법 제23조에서 말하는 ‘해고’란 실제 사업장에서 불리는 명칭이나 절차에 관계없이 위의 두 번째에 해당하는 모든 근로계약관계의 종료를 뜻한다.
Unofficial English translation
'Dismissal' as used in Article 23 of the Labor Standards Act means all terminations of an employment relationship falling under the second category above, regardless of the appellation or procedure used in the actual workplace.
Factors
- 사직의 의사가 없는 근로자로 하여금 어쩔 수 없이 사직서를 작성·제출하게 하고 이를 수리하는 의원면직의 형식을 취하여
- 비록 형식적으로는 을 등이 자진하여 식당을 그만둔 것처럼 보일지라도
- 실질적으로는 갑의 일방적 의사에 의하여 사직 의사가 없는 을 등으로 하여금 어쩔 수 없이 사직하게 하여
- 5일 후에는 가게에 남아서 일을 하더라도 월급을 주지 못할 수 있다는 취지로 말하였고
- 같은 날 갑은 을 등 모두에 대하여 고용보험 피보험자격상실신고를 마치고 그 무렵 구직사이트에 직원 3명을 구하는 채용공고를 올린
Unofficial English translation
• causing an employee who has no intention of resigning to have no choice but to write and submit a letter of resignation, and adopting the form of a resignation at one's own request by accepting it,
• although formally it may appear that B and the others voluntarily left the restaurant,
• in substance, caused B and the others, who had no intention of resigning, to have no choice but to resign due to A's unilateral decision, and
• stated to the effect that, even if they remained working at the store, he might not be able to pay their wages after five days, and
• on the same day, A completed the report of loss of insured status under employment insurance for all of B and the others and, around that time, posted a recruitment notice on a job-seeking website seeking three employees
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2001. 1. 19. 선고 2000다51919, 51926 판결(공2001상, 519)
Unofficial English translation
Supreme Court Decision 2000Da51919, 51926 decided January 19, 2001 (Gong 2001 Sang, 519)
Decisions referred to
[1] 대법원 2001. 1. 19. 선고 2000다51919, 51926 판결(공2001상, 519), 대법원 2018. 5. 30. 선고 2014다9632 판결(공2018하, 1160)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If an employer tells employees only that wages may not be paid and gives them no time to seek other work while keeping the same workforce, is their departure still a dismissal forced by the employer's unilateral will?
The retrial judgment of the Chuncheon District Court, Grand Panel, on whether each of the four was dismissed and on the dismissal allowance, would show how the rule works in the individual case. A later decision on whether an employer's omission to name who is to leave is itself a notice of dismissal would call for this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary states a general requirement that dismissal is any termination against the employee's will by the employer's unilateral will, while the independent reading applies the employer's statements and reports directly to the facts; the form of the standard differs though the answer is the same.
실질적으로는 갑의 일방적 의사에 의하여 사직 의사가 없는 을 등으로 하여금 어쩔 수 없이 사직하게 하여 근로계약관계를 종료시킨 것이므로 해고에 해당한다고 보아야 하는데도Axis 8 (Open question and revisit condition): Primary “If an employer tells employees only that wages may not be paid and gives them no time to seek other work while keeping the same workforce, is their departure still a dismissal forced by the employer's unilateral will?” vs Independent “What amounts of dismissal notice allowance are ultimately payable to the claimant and the designated party on remand?”
The primary asks whether a mere warning about unpaid wages, without staff reduction or time to find work, still makes departure a dismissal, while the independent reading asks what dismissal notice allowance is payable on remand.
비록 형식적으로는 을 등이 자진하여 식당을 그만둔 것처럼 보일지라도, 실질적으로는 갑의 일방적 의사에 의하여 사직 의사가 없는 을 등으로 하여금 어쩔 수 없이 사직하게 하여 근로계약관계를 종료시킨 것이므로 해고에 해당한다고 보아야 하는데도, 이와 달리 본 원심판단에 법리오해의 위법이 있다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Chuncheon District Court, in its judgment of 19 June 2019 (2017Na52853), kept the first-instance judgment dismissing the claims. It held that the defendant was not shown to have dismissed all four employees, and that even if he had intended to dismiss some of them, none of the four could become entitled to a dismissal allowance unless the person to be dismissed was identified.
Supreme Court standard: The Supreme Court held that this misapprehended the law on dismissal and, contrary to Supreme Court precedent within the meaning of Article 3(ii) of the Summary Trial Procedure Act, gave a judgment that affected the outcome. It reversed the whole judgment and remanded the case to the Chuncheon District Court, Grand Panel, for retrial, on the unanimous opinion of the Justices concerned.
Distinguishing conditions
- An employer that expressly tells named employees to go, having itself selected who is to leave, so that the ending of the relationship is not left to the employees' choice.
- Employees who leave on their own accord without being told that wages may not be paid and without the employer's unilateral will pushing them out.
- An automatic termination of the employment contract without the will of either side, which the reasons distinguish from dismissal.
Record verification notes
Set the text message of 30 November 2016, the statements at the meeting on 1 December 2016, the absence of any effort to dissuade the four, the same-day loss-of-eligibility notifications and the job advertisement against the test, since they were among the circumstances that made a resignation in form a dismissal in substance. Then check that the claim is one for a dismissal allowance, which is what the lower court treated it as, and that it rests on Article 23(1) of the Labour Standards Act read with Article 107(1) of the Civil Act.
From the official text
Points at issue
[1] 근로계약의 종료사유로서 퇴직, 해고, 자동소멸의 구분 / 근로기준법 제23조에서 말하는 ‘해고’의 의미 및 사용자가 사직의 의사가 없는 근로자로 하여금 어쩔 수 없이 사직서를 작성·제출하게 하고 이를 수리하는 의원면직의 형식을 취하여 근로계약관계를 종료시킨 경우, 해고에 해당하는지 여부(적극) [2] 갑이 운영하는 식당에 을 등 4인이 종업원으로 근무하고 있었는데, 갑이 을 등에게 앞으로 종업원 3명으로 가게를 운영할 계획이므로 새로운 직장을 찾으라는 취지의 문자메시지를 보낸 후 다음 날 위 사안에 관하여 회의를 하면서 5일 후에는 가게에 남아서 일을 하더라도 월급을 주지 못할 수 있다는 취지로 말하였고, 이에 회의가 끝난 후 을 등이 식당을 그만두었으며, 같은 날 갑은 을 등 모두에 대하여 고용보험 피보험자격상실신고를 마치고 그 무렵 구직사이트에 직원 3명을 구하는 채용공고를 올린 사안에서, 비록 형식적으로는 을 등이 자진하여 식당을 그만둔 것처럼 보일지라도, 실질적으로는 갑의 일방적 의사에 의하여 사직 의사가 없는 을 등으로 하여금 어쩔 수 없이 사직하게 하여 근로계약관계를 종료시킨 것이므로 해고에 해당한다고 보아야 하는데도, 이와 달리 본 원심판단에 법리오해의 위법이 있다고 한 사례
Unofficial English translation
[1] Distinction among retirement, dismissal, and automatic lapse as grounds for termination of an employment contract / Meaning of 'dismissal' as used in Article 23 of the Labor Standards Act, and whether it constitutes dismissal where the employer causes an employee who has no intention of resigning to have no choice but to write and submit a letter of resignation and terminates the employment relationship by adopting the form of a resignation at one's own request by accepting it (affirmative) [2] In a case where B and three others were working as employees at a restaurant operated by A, A sent a text message to B and the others to the effect that he planned to operate the store with three employees from then on and therefore they should look for new jobs, and the following day, while holding a meeting on the matter, stated to the effect that even if they remained working at the store, he might not be able to pay their wages after five days, and where, after the meeting ended, B and the others left the restaurant, and on the same day A completed the report of loss of insured status under employment insurance for all of B and the others and, around that time, posted a recruitment notice on a job-seeking website seeking three employees, a case holding that, although formally it may appear that B and the others voluntarily left the restaurant, in substance A, by his unilateral decision, caused B and the others, who had no intention of resigning, to have no choice but to resign and thus terminated the employment relationship, so that it must be regarded as a dismissal, and that, notwithstanding this, the determination of the court below to the contrary was erroneous as a misapprehension of legal principles
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 춘천지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main court of Chuncheon District Court.
Provisions referred to
[1] 근로기준법 제23조 제1항, 민법 제107조 제1항 [2] 근로기준법 제23조 제1항, 민법 제107조 제1항
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