[퇴직금등][공1992.2.1.(913),510]
(a) The case holding that, in establishing a new company by separating the existing company from the existing company to the separate company, the rights and duties of the existing company with respect to wages of the workers who choose the method of newly joining the new company after receiving retirement allowances by free will shall not be succeeded to the new company;
(b) In cases where the company's retirement allowance rules are calculated by excluding some of the wages in calculating average wages, unlike the provisions of the Labor Standards Act, but the amount of retirement is ultimately higher than the lowest limit guaranteed under Article 28 of the same Act, whether the rules on the retirement allowance are appropriate (affirmative)
A. In order to separate the existing company from the existing company to separate the new company into a separate company, one of the two methods that enable its employees to retire from the existing company, join the new company, or maintain the previous position as it is and become its members of the new company, and the majority of its employees selected the method of maintaining the previous position and becoming members of the new company, and the plaintiff, by their free will, selected the method of newly becoming members of the newly incorporated company after receiving retirement allowances from the above existing company, the rights and duties of the plaintiff's wages to the existing company are not succeeded to the newly incorporated company.
B. Article 28(1) of the Labor Standards Act shall be deemed to stipulate the lower limit of retirement allowances that an employer shall pay to a retired employee. Thus, even if the company calculates the average wage by excluding some wages in calculating the amount of average wages for calculating the amount of retirement allowances of employees, unlike the above provisions of the Labor Standards Act, if the retirement amount is calculated by excluding some wages, it cannot be said that the company’s payment of retirement allowances is erroneous if the retirement amount reaches the lower limit
Article 28 of the Labor Standards Act
A. Supreme Court Decision 84Meu90 delivered on June 26, 1984 (Gong1984, 1283) (Gong1981, 1740), 90Da16801 delivered on May 28, 1991 (Gong1991, 1740). Supreme Court Decision 80Da1340 delivered on November 23, 1982 (Gong1983, 85) (Gong187 delivered on February 10, 1987) (Gong1987, 411), 84Meu1409 delivered on February 24, 1987 (Gong1987, 506)
Plaintiff 1 and 2 others, Counsel for the defendant-appellee
Gangwon Radan Mining Corporation
Seoul High Court Decision 90Na16155 delivered on August 23, 1991
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
The grounds of appeal No. 1 are examined.
Based on macroscopic evidence, the court below acknowledged the fact that the defendant company separated from the non-party Gangwon Industrial Co., Ltd. on Feb. 1, 1988 and separated from the non-party Gangwon Industrial Co., Ltd. to the separate body, caused its employees to retire from the above Gangwon Industrial Co., Ltd. and join the defendant company or become its members by the defendant company's free will, one of the two ways to maintain the previous status and to become members of the defendant company by maintaining their previous status, and that the plaintiff 3 selected the method of selecting the defendant company to retire from the above Gangwon Industrial Co., Ltd. by free will and receive retirement allowances for the above Gangwon Industrial Co., Ltd., but determined that between the above Gangwon Industrial Co., Ltd. and the defendant company and the plaintiff 3, the rights and duties on the wages of the above Gangwon Industrial Co., Ltd.
In light of the records, the above recognition and judgment of the court below are justified, and there is no violation of the rules of evidence or misapprehension of the legal principles, such as the theory of lawsuit. There is no reason for the argument.
The grounds of appeal No. 2 are examined.
As stated in Article 28(1) of the Labor Standards Act, the average wage refers to the average wage stipulated in Article 19 of the same Act, but Article 28 of the same Act shall be deemed to provide the lowest limit of retirement allowance to be paid to the retired employee. Thus, in calculating the average wage for calculating the employee's retirement allowance, even if the employee company calculates the average wage by excluding some of the wages, unlike the above provisions of the Labor Standards Act, if the amount of retirement is calculated by excluding it from the average wage, it cannot be said that the employee company's payment of retirement allowance is erroneous if it reaches the lowest limit guaranteed in the above Act as a result of adopting the progressive payment rate provided by the Defendant company (see Supreme Court Decisions 80Da1340, Nov. 23, 1982; 85Meu187, Feb. 10, 198
The court below's decision that rejected plaintiff 1's claim for retirement allowance in accordance with the above legal principles and that the amount of retirement allowance paid by the defendant company to plaintiff 2 and the amount of retirement allowance paid by the defendant company to the plaintiff 2 should be paid additionally as the lowest amount of retirement allowance under the above legal provisions
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)