[2] The case holding that the retirement consolation benefits paid pursuant to the provisions of the collective agreement that "the payment of retirement consolation benefits for not less than six months in the event of dismissal for business reasons, restructuring of the financial industry, forced withdrawal, or merger shall not have the nature as wages after the payment of the worker's work during his/her term of office, but shall be deemed as the consolation benefits for dismissal, or the compensation which is paid for livelihood security after dismissal, does not constitute estate claims under Article 38 subparagraph 10 of the former Bankruptcy Act

1. Based on the evidence adopted, the court below concluded a collective agreement (hereinafter “instant collective agreement”) containing the provision that on July 1, 200, the non-party 1’s representative director of the Mutual Saving and Finance Company (hereinafter “Bankruptcy Company”) shall pay retirement consolation benefits for not less than six months upon dismissal or financial industry restructuring for managerial reasons (hereinafter “instant retirement consolation benefits provision”) with the chairman of the Trade Union and Finance Company and the non-party 2 of the bankrupt company (hereinafter “the non-party 1”). The instant retirement consolation benefits provision was originally determined as “retirement consolation benefits for not less than six months” in the collective agreement in 2000, and the Financial Supervisory Commission shall designate the bankrupt company as insolvent financial institution on July 5, 200, ordered the plaintiff and the non-party 3 to conduct business management for the bankrupt company, and determined that the non-party 1 was the non-party 2, who was declared bankrupt and the non-party 2, who was declared bankrupt, to be the non-party 1, who was declared bankrupt, to receive the remaining retirement consolation benefits from the court.

2. However, we cannot agree with the judgment of the court below for the following reasons.

Whether retirement consolation benefits constitute wages or not shall be determined by comprehensively taking into account the grounds, timing and criteria for payment, relationship with labor, etc.

According to the judgment of the court below and records, the retirement allowance provision of this case was newly established at 200 years old collective agreement (from July 1, 200 to 200), which was concluded on August 1, 200, with the retirement allowance system of 100, and the retirement allowance system of 20 years old. The bankrupt company was already retired from office due to bankruptcy, etc. for 20 years old mutual savings and finance companies in Daejeon and mutual savings and finance companies, and the bankrupt company was conducting its business only for 3 years old, 100,000 won after 10,000 won old 20,000 won old 20,000 won old 20,000 won old 20,000 won old 20,000 won old 20,000 won old 19,000 won old 20,000 won old 9,00 won old 19,00 won old 19.

In full view of various circumstances such as the retirement allowance operation status of the bankrupt company as seen above, the period when the provisions of this case were newly established and its progress, the debt size and financial status of the bankrupt company as of that time, the situation of retirement of other mutual savings and finance companies in the same region, the plaintiffs' continuous service period and the amount of retirement compensation in this case, and the remaining period up to the continuous service period of employees and the retirement compensation in this case, the average wages for six months before their retirement are uniformly paid regardless of the fact that they are small and medium enough and low enough, etc., in a case where the retirement compensation in this case is dismissed in the course of a reorganization, a merger, or a conversion into another financial institution under the Mutual Savings and Finance Company Act and the Act on the Structural Improvement of the Financial Industry, it is reasonable to view that the retirement compensation in this case is a type of compensation payment or compensation payment for livelihood after the dismissal as part of a corrective measure of an insolvent financial institution, or in this case where it is dismissed due to a compulsory retirement due to the cancellation of business approval or the declaration of bankruptcy by the application.

The Supreme Court precedents or decisions cited by the court below are different from other cases and thus are inappropriate to be invoked in the instant case.

Nevertheless, the court below concluded that the retirement consolation benefits in this case are the estate claims under Article 38 subparagraph 10 of the Bankruptcy Act, because they have the nature of the retirement consolation benefits in return for the plaintiffs' performance of duties while in office. Thus, the court below erred by misapprehending the nature of retirement consolation benefits in this case or the legal principles on estate claims, or by failing to exhaust all deliberations, which affected the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)