(b) Whether a retired driver can claim retirement allowances from the above individual income in cases of paragraph (1);

B.1. In the case of paragraph (1), the driver, as an employer, without paying his personal income, shall not be paid in full every day as the result of paying the full amount of the wage to the company. Therefore, it is reasonable to view that the personal income brought by the driver directly is a special form of wage in which the right to claim the payment of retirement pay does not occur.

2. The costs of lawsuit are assessed against the plaintiffs.

The plaintiffs were employed by the defendant company for 24 hours on a daily basis, but a certain amount of the income from the operation of a taxi owned by the defendant company is deposited into the defendant company under the name of taxi commission, etc., and the remaining amount is brought up by the plaintiffs, and all of them were retired. The period in which the plaintiffs worked for the defendant company is not disputed between the parties as shown in the attached Table No. 4-1 to 33, A6, and 8, or is recognized in accordance with the purport of the argument and the whole purport of the argument.

2. The plaintiffs' claim

A. Defendant Company is a business place with five or more regular workers, and is obligated to pay the Plaintiffs the average wage of not less than 30 days for one year of continuous employment as retirement allowance pursuant to Article 28 of the Labor Standards Act.

B. Personal income brought by the Plaintiffs except taxi commission from operational income constitutes wages, which are remuneration for labor, and thus should be the basis for calculating retirement pay.

C. Retirement pay shall be based on average wages or ordinary wages, and the average wage shall be calculated based on the actual individual income of the Plaintiffs. However, if the daily revenue of the Plaintiffs, monthly number of working days, etc. are different, it shall not be revealed that the income of automobile drivers under the basic statistical survey report on the wage structure, or if the Defendant Company’s annual insurance amount that the Defendant Company consulted with the old Si Medical Insurance Association, is presumed to be the average wage of the Plaintiffs.

D. Therefore, when calculating the retirement allowances of the plaintiffs, at least 4,500,000 won shall be calculated respectively.

3. Determination

A. The following facts are either in dispute between the parties or acknowledged by the whole purport of the pleading and entry of Gap evidence Nos. 4-1 to 33, Gap evidence No. 5, 6, and 8.

(1) The Plaintiff, while working on a daily basis, pays a certain amount of the daily income (for mid-term vehicles in 1994, KRW 69,000 and KRW 57,000 for small-sized vehicles) remaining at the expense of the Plaintiffs, as taxi commission, and pays 10,000 won to the Defendant Company for each working day separately. The taxi drivers are working on an average of 13 days per month, but there are differences in the number of working days depending on individuals, and the daily income is different depending on good faith, and in the event of an accident in 7 years, the Plaintiff is qualified as a personal taxi driver, and thus, the end is tendency not to work significantly for career management.

(2) In the Defendant Company, if the Plaintiffs deposited taxi commission and gold KRW 10,00,00 per day, they did not have any relation to their personal income. The Defendant Company accumulated the amount of KRW 10,000 per month separately received in addition to the taxi commission, and paid approximately KRW 110,00,00 (based on the 13th day of each month) after deducting medical insurance premiums, labor union expenses, national pension, welfare fund, etc., as monthly pay to the Plaintiffs. Based on the above amount at the time of retirement, the Plaintiffs separately received retirement allowances of KRW 600,000 per individual from the Defendant Company.

B. Character of individual income of the plaintiffs

In addition to paying a certain amount according to the actual number of working days each month to the Plaintiffs, the Defendant Company has left the balance after deducting a certain amount of taxi commission paid to the Company out of daily transport earnings in consideration of the characteristics of the work form and the convenience of calculation. As such, the part that is the individual income of the said driver is also deemed as the income of the said individual, and thus, the said part constitutes the wage, which is the remuneration for labor (see Supreme Court Decision 91Da36192, Dec. 24, 1993).

C. Legal nature of retirement pay

Wages while in office that a worker receives from the employer are not paid according to the value of the labor force provided by the worker concerned, but are not paid only part of the wages equivalent to the value of the actual labor force. As such, it is a retirement allowance for which the accumulation of such unpaid wages has become a source of accumulation and payment, and it is necessary to acquire the right to claim the unpaid wages as a retirement allowance (which is so-called post-payment theory), and the worker has the obligation to pay them at the time of retirement.

D. Whether the plaintiffs' claim for retirement allowance payment occurred

As seen above, the Plaintiffs are in principle engaged in daily-day work, but under their responsibility the remaining amount after deducting gas costs, taxi commissions, and 10,000 won from daily income from personal income is brought to personal income. As such, the difference in income by individual, and the number of working days between one month is not fixed, the Plaintiffs’ form of work is special compared to other workers in the same field.

In ordinary cases, the employee's provision of labor and the employer's payment of the agreed wage to the employee from the employee's or through a third party after deducting the necessary or related expenses (including allowances for severance and retirement benefits). In such a case, the employee may claim the paid wage in arrears during the period of his/her service as a retirement allowance. However, in the case of the plaintiffs, the employee's payment of individual income without paying it to the defendant company does not lead to the result of the employee's payment of the total amount of the paid wage per day. Thus, it is reasonable to view that the individual income brought up by the plaintiffs is a special form of wage in which the right to claim the payment of the retirement allowance does not arise. Accordingly, the plaintiffs have no right to claim the retirement allowance as the unpaid wage against the defendant company at the time of their retirement.

4. Conclusion

Therefore, the plaintiffs' claim of this case, which is premised on the defendant company's right to claim retirement allowance against the defendant company, is without merit, and therefore, the plaintiffs' claim is dismissed. It is so decided as per Disposition (attached Form omitted)

Judges Kim Jong-soo(Presiding Judge) and the final date of transfer