2. The defendant shall pay to the plaintiff 16,025,41 won with 5% interest per annum from April 7, 2004 to September 13, 2007, and 20% interest per annum from the next day to the day of complete payment.

3. The plaintiff's remaining appeal is dismissed.

4. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

A. Defendant Company is a company established for the purpose of the transportation business of taxi passengers, and the Plaintiff joined the Defendant Company on November 10, 1980 and served as a taxi engineer belonging to the Defendant Company on April 30, 2002, and retired on May 1, 2002.

B. On June 19, 2002, the Defendant Company paid retirement allowance of KRW 11,986,296 to the Plaintiff. In calculating the average wage that forms the basis for the payment of the aforementioned retirement allowance, the Defendant Company included the basic salary, allowances, and bonuses between the three months before retirement, but the Plaintiff’s daily operation of taxi did not include the amount paid to the Defendant Company in excess of the taxi commission, which is the basic amount to be paid to the Defendant Company, out of the total transport income (hereinafter “amount exceeding the taxi commission”).

C. From September 1, 1997, after the full-time management system for transportation revenue was implemented, 40 labor union members, including the Plaintiff, paid to the Defendant Company the total amount of transportation revenue including excess taxi commission. The Defendant Company kept it, but made a full refund of the remainder after deducting a certain amount (fuel) from excess taxi commission amount after 3-4 days from the date of payment of wages, and issued a statement of excess taxi commission amount to be kept and refunded to the Plaintiff and its union members including the Plaintiff.

[Ground of recognition] Facts without dispute, Gap 3-1, 3-2, and 7, the purport of the whole pleadings

2. Judgment on the assertion of non-prosecution special agreement

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance (Article 2-b). Thus, this part of the judgment is cited by the main sentence of Article 420 of the Civil Procedure Act.

3. Occurrence of liability to pay retirement allowances additionally;

A. Both claims

The Plaintiff asserts that the excess taxi commission may be managed and controlled by the Defendant Company, which is included in the average wage that is the basis of the calculation of retirement pay.

In this regard, the Defendant Company paid 25% of the taxi drivers belonging to the Defendant Company to the Defendant Company more than 25% of the taxi commission, and most of the taxi drivers have immediately reverted to their own income. As such, it is possible to change the method of disposal of excess taxi commission according to their choice, and as long as it is possible to change such method from time to time, it cannot be said that there was predictability as to the amount of excess taxi commission contribution to the Defendant Company. Thus, the excess taxi commission should not be included in the average wage, which serves as the basis for the calculation of retirement pay.

B. Determination

(i) In addition to paying a certain amount of money according to the number of actual working days each month to a driver under his/her jurisdiction, if a transportation company has left the balance after deducting a certain amount of taxi commission paid to the company, out of daily transportation earnings, taking into account the unique characteristics of his/her work form and the convenience of calculation, etc., the portion that constitutes an individual's income, and thus, the excess of taxi commission is also included in the average wage, which serves as the basis for the calculation of retirement allowances, barring special circumstances. However, the amount of excess of taxi commission, barring special circumstances, shall be included in the average wage, which serves as the basis for the calculation of the amount of retirement allowances, in calculating the amount of the average wage that is the basis for the calculation of the amount of retirement allowances, should be excluded from the amount that can be managed or controlled by the employer in order to ensure the predictability of the employee's contribution of the amount of excess taxi commission, and thus, if the driver directly reverts the amount of excess taxi commission to his/her own individual income, it is not certain that the employee's individual income is not included in the amount of the average wage.

D. However, as seen earlier, in the event that the Defendant Company pays all the taxi earnings to the Defendant Company, such as the Plaintiff, unlike the case in which the excess taxi commission accrued directly to the individual himself, the Defendant Company shall be deemed to have managed and controlled excess taxi commissions as it can clearly confirm and specify whether the excess taxi commission occurred and the scope of the amount, and thereby, it shall be deemed that the Defendant Company may manage and control the excess taxi commissions. Thus, the excess taxi commissions paid by the Plaintiff shall be included in the average wage, which serves as the basis for the calculation of retirement allowances (see Supreme Court Decision 2002Da4399, Aug. 23,

Fidelity and only some of the union members, including the plaintiff, paid the total transportation revenue to the defendant company. The remaining drivers paid a certain amount of taxi commission to the defendant company and directly reverted the remainder of excess earnings to the individual himself/herself, or the defendant company returned it again to the driver without confirming whether the excess taxi commission exceeds the actual transportation revenue paid by the driver of the defendant company is consistent with the actual transportation revenue. It does not affect this judgment.

x) Accordingly, the Defendant Company is obligated to pay the Plaintiff the remainder after deducting the retirement allowances already received by the Plaintiff from the legitimate retirement allowances calculated by including the excess taxi commission paid by the Plaintiff in the average wage, which is the basis for calculating the retirement allowances.

4. Calculation of the retirement allowances to be paid additionally;

(a) Period subject to the calculation of average wages;

(1) Article 2(1)6 of the Labor Standards Act provides that “The average wage means the total amount of wages paid to a worker during three months prior to the date on which the cause for calculating the average wage occurred by dividing the total number of days during which the period was calculated by the total number of days during which the period was calculated.” Article 4 of the Enforcement Decree of the Labor Standards Act provides that “If it is impossible to calculate the average wage under the above Act and the Enforcement Decree thereof, it shall be governed by the Ordinance of the Ministry of Labor.” Although there is no standard or method under Article 4 of the above Enforcement Decree, it is difficult to determine the average wage under Article 4 of the above Enforcement Decree, it shall also be deemed that the above provision provides that the calculation of the average wage is clearly inappropriate even if it is not possible to do so, it shall be deemed that the above provision provides that the calculation of the average wage is based on the average wage paid to a worker for three months prior to the date on which the cause for the payment of the retirement allowance occurred.” Article 2(1)6 of the Labor Standards Act provides that “If the average wage is significantly higher than the average wage paid to a worker for nine months immediately preceding month, it shall not be determined.”

Dozed Facts

㈎ 원고가 피고 회사에 2001. 12.부터 2002. 4.까지 납부한 월 평균 사납금 초과 수입금은 주1) 1,169,400원 으로, 2001. 1.부터 2001. 11.까지 납부한 월 평균 사납금 초과 수입금 주2) 663,272원 의 약 1.76배(= 1,169,400원 / 663,272원) 가량에 이르고 있다.

㈏ 반면, 피고 회사의 다른 택시운전기사로, 원고와 마찬가지로 사납금 초과 수입금을 피고 회사에 납부한 노조원 중 원고와 근무조건이나 근무성과면에서 비슷한 지위에 있던 소외 1, 2, 3, 4가 2001. 12.부터 2002. 4.까지 납부한 월 평균 사납금 초과 수입금 평균액은 1,043,900원{= ( 소외 1 주3) 930,200원 + 소외 2 주4) 1,043,600원 + 소외 3 주5) 1,171,000원 + 소외 4 주6) 1,030,800원 ) / 4}으로, 2001. 1.부터 2001. 11.까지 납부한 월 평균 사납금 초과 수입금 평균액 747,340원{= ( 소외 1 주7) 682,090원 + 소외 2 주8) 662,363원 + 소외 3 주9) 877,909원 + 소외 4 주10) 767,000원 ) / 4}의 약 1.39배(= 1,043,900원/747,340원)에 불과하다.

㈐ 한편 원고는 2002. 4. 10.경 의정부시청에 개인택시면허를 신청하여 2002. 8. 20.경 개인택시면허를 취득하였는데, 2004. 7. 6. 피고 회사 대표이사에 대한 근로기준법위반 피의사건의 수사과정에서 퇴직 전 5개월 동안의 사납금 초과 수입금이 급증한 원인에 대하여, “예전에는 다른 시에 갈 때 택시미터기를 안 누르고 그냥 갔는데 퇴직하기 전에는 다른 시에 나갈 때도 택시미터기를 모두 누르고 일을 열심히 하였기 때문에 수입금이 높아진 것이다”는 취지로 진술하였고, 실제 원고가 피고 회사에 2001. 12.부터 2002. 4.까지 납부한 월 평균 사납금 초과 수입금의 규모는 전년도 같은 기간(2000. 12.부터 2001. 4.까지)에 비하여 약 1.76배(= 1,169,400원/ 주11) 662,600원 ) 가량 늘어났다.

㈑ 원고의 2001. 9.부터 2001. 11.까지 3개월 동안의 피고 회사에 대한 사납금 초과 수입금의 보관금 합계는 주12) 2,341,000원 이고, 앞서 본 소외 1, 2, 3, 4의 같은 기간 동안의 보관금 합계 평균액은 2,252,500원{(= 소외 1 주13) 1,893,000원 + 소외 2 주14) 1,968,000원 + 소외 3 주15) 2,483,000원 + 소외 4 주16) 2,666,000원 ) / 4}이다.

[Ground of recognition] Facts without dispute, Gap 3-1, 3-2, 19-1, 19-2, Eul 6, 7-27, 16, 18-1 through 28, and the purport of the whole pleadings

[Insufficient Evidence] Gap 7, 11 through 13, 16, 32, and 33 (including each number), and some testimonys of non-party 4 and 5 of the witness of the trial court

【Judgment

According to the above facts, even if the seasonal characteristics of taxi business actively conducted due to the special end of the year from December 2001, 2001, and the external external factors, etc. are considered to have been strongly reading the use of the taximeter’s duty by the competent authority during the period from December 2001 to April 2002, it is reasonable to deem that the Plaintiff’s increase considerably compared with the monthly average taxi commission paid by the Defendant company during the period from December 2001 to April 2002, due to the intentional increase of the use of the taximeter’s period for retirement benefits. Accordingly, it is reasonable to deem that the Plaintiff’s average wage and retirement allowances therefrom are attributable to the payment of the higher taxi commission exceeding the taxi commission by excluding the period from December 201 to April 13, 202, which was intentionally conducted by the Plaintiff to increase the average wage (the average wage calculated during the period from September 1, 201 to April 201).

(b) Calculation of the retirement allowances to be paid additionally;

(i)Calculation of average wages;

㈎ 산정기간 동안의 임금총액

According to the statements in Eul 18-9 through 11, the fact that the total amount of wages during September 1, 2001, which served as the basis for the calculation of the plaintiff's retirement pay, during November 30, 201, is 3,956,788 won (=17), 1,222,292 won + a week + a week 1,377,480 won + a week 19) 1,357,016.

㈏ 평균임금 : 43,481.18원(= 3,956,788원 / 91일; 소수점 셋째 자리 이하는 버림)

Sheet retirement pay: 28,011,707 won (average wage = average wage of 43,481.18 won x 30 days x (21 + 5/12 + 21/365 x less than won as a result of calculation).

Abstract Retirement Allowance to be paid additionally: 16,025,411 won (reasonable retirement allowance of 28,01,707 won - 11,986,296 won)

x) Determination of the cost and the defendant's respective arguments related to the calculation of the average wage;

㈎ 연차수당포함여부에 관한 원고의 주장에 대한 판단

The plaintiff asserts that the annual allowance of 248,336 won received by the plaintiff on February 2002 should be included in the calculation of the average wage as the amount received periodically in February every year.

According to Article 18 of the former Labor Standards Act (amended by Act No. 5305, Mar. 13, 1997) and Article 19 of the same Act, "average wage, which serves as the basis for the calculation of retirement allowances under Article 28 of the same Act, means that the total amount of wages paid for the relevant worker during the three-month period prior to the date of retirement, is limited to the total number of days in that period. Meanwhile, the annual paid leave system under Article 48 of the same Act refers to that that the employer should grant the worker a paid leave at the time of request for the next one year with respect to the worker who has worked for one year or has worked for 90 percent or more before his retirement. If the worker retires without any annual paid leave finalized to be paid for 90 or more days before his retirement, it is clear that the worker does not have the right to receive a paid leave for 16 years prior to his retirement, including the right to claim the remaining one-year paid annual paid leave before his retirement.

In this case, it is recognized that the Plaintiff received KRW 248,36 from the Defendant Company as annual allowance on February 9, 2002, but this is merely the remuneration for work for one year from January 1, 200 to December 31, 200, and it cannot be viewed as the remuneration for work provided within the average wage calculation period. Thus, the money in the name of the above annual allowance cannot be included in the total wage, which is the basis for calculating the average wage for the calculation of the retirement allowance of the Plaintiff retired on April 30, 202.

㈏ 계속근로연수산정에 관한 피고 회사의 주장에 대한 판단

The defendant company asserts that since the plaintiff started to pay the excess taxi commission to the defendant company from September 1, 1997, the amount of excess taxi commission should be limited to the number of years of continuous service that should be calculated by including the excess taxi commission in the average wage and also to the retirement allowance contribution of the defendant company should be guaranteed.

In light of the fact that the right to claim a retirement allowance is a requirement for retirement after the end of the continuous service period, the continuous service period, average wages, and retirement allowance payment rate, which serve as the basis for the calculation of the retirement allowance, should be determined at the time of retirement, except in extenuating circumstances (see Supreme Court Decision 95Da19256, May 14, 1996, etc.). According to Article 28(2) of the collective agreement concluded on March 21, 2002 between the defendant company and its union, it can be recognized that “the calculation of the number of years of continuous service, which serves as the basis for the calculation of the retirement allowance, shall be from the date of entry to the date of submission of the resignation” (B-9). This agreement does not violate the provisions of Article 34(1) of the Labor Standards Act (wholly amended by Act No. 7379, Jan. 27, 2005). Thus, the total period of retirement allowance from October 10 to 30, 1980.

5. Conclusion

Therefore, the defendant company is obligated to pay to the plaintiff the amount of 16,025,41 won of retirement allowance and the amount of damages for delay calculated by the ratio of 5% per annum under the Civil Act from April 7, 2004 following the delivery day of the complaint of this case to September 13, 2007, which is the date of the decision of this court, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case of this case is accepted within the above recognition limit, and the remaining claims are dismissed due to the lack of reasons. Since the judgment of the court of first instance is partially unfair, the plaintiff's appeal is partially accepted, and it is so decided as per Disposition.

Judges Lee Jin-hee (Presiding Judge)

Note 1) = [(1,201,00 + 1,15,00 + 1,279,000 + 1,270,000 + 1,202,00 + 1,210,000 + 1,210,00)/5; 16-16, 200 of excess earnings exceeding 1,200,000, but Gap 3-1, 3-2

Note 2) [The (8,497,000 - 1,201,00) / 11]

Note 3) = (978,00 + 1,008,000 + 818,000 + 991,000 + 856,000)/5)

Note 4) = ((839,00 + 1,174,00 + 865,00 + 1,393,00 + 947,00)/5)

Note 5) = (1,001,00 + 1,483,00 + 1,157,000 + 1,195,00 + 1,195,00 + 1,019,000)/5]

Note 6) = (1,073,00 + 1,062,00 + 1,172,00 + 902,00 + 900 + 945,00)/5)

Note 7) [The (8,481,000 - 978,000) / 11]

Note 8) [The (8,125,000 - 839,000) / 11]

Notes) = (10,658,000 - 1,001,000) / 11)

Note 10) [The (9,510,000 - 1,073,00) / 11]

Notes 11) = (79,00 + 770,00 + 327,00 + 848,000 + 569,00)/5)

Note 12) = 699,000 + 817,000 + 825,000)

Note 13) = 479,00 + 878,000 + 536,000)

Notes 14) = 749,000 + 545,000 + 674,000)

Notes 15) = 713,000 + 756,000 + 1,014,000)

Note 16) = 1,022,00 + 722,000 + 922,000)

Note 17) = [The basic salary 338,646 won on September 2001 + (the continuous allowance of KRW 100,000 + the night allowance of KRW 28,205) + the bonus of KRW 56,441 + the excess taxi commission of KRW 69,00];

Note 18) [The basic salary 338,646 won on October 2001 + (the continuous allowance of KRW 100,000 + the night allowance of KRW 38,461 + the holiday allowance of KRW 16,932 + the special allowance of KRW 16,932 + the special allowance of KRW 100) + the bonus of KRW 56,441 + the excess taxi commission of KRW 817,00)];

Note 19) = [The basic salary 338,646 won on November 2001 + (the continuous allowance of KRW 100,000 + the night allowance of KRW 25,641 + the monthly allowance of KRW 11,288 + the bonus of KRW 56,441 + the excess taxi commission of KRW 825,00)];