[2] In order to determine whether or not there exists a duty to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act, the period which serves as the basis for calculating the number of "regular workers" (i.e., the total working period of the relevant workers) and the standard for determining whether a

[2] The number of regular workers in order to determine whether to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act shall be calculated on the basis of the total working period of the relevant worker. Here, the term "regularly" refers to situations where the number of workers is less than five, and it constitutes five or more persons in a situation objectively determined by social norms, even if the number of workers is less than five, and it falls under such cases, and it shall be interpreted that the female workers include not only the workers who continue to work in the relevant workplace but also the daily workers employed for such time.

The summary of the facts charged in the instant case is that the Defendant was an employer who employs five full-time workers as the representative of ○○○○ in Yangju-si (hereinafter omitted) and operates a construction material distribution business. The Defendant did not pay KRW 10,184,097 as retirement allowances of the Nonindicted Party, who worked from October 2003 to August 15, 2010 at the said workplace, within 14 days from the date of retirement, which is the date of the occurrence of the cause for payment, without any agreement between the parties on the extension of the payment period.

The lower court determined that the concept of “regular workers” under the Act on the Guarantee of Workers’ Retirement Benefits should be applied mutatis mutandis to the punishment for unpaid retirement benefits to workers after December 1, 2005, which was enacted by Act No. 7379 on January 27, 2005, not the Labor Standards Act, and that the Act on the Guarantee of Workers’ Retirement Benefits should apply to the case where the non-indicted workers retire from the above workplace on August 15, 2010. Since the Act on the Guarantee of Workers’ Retirement Benefits applies to the workplaces that ordinarily employ four or less workers on December 1, 2010, it is reasonable to view that the concept of “regular workers” under the Act on the Guarantee of Workers’ Retirement Benefits is applied mutatis mutandis to the concept of “regular workers” under the Act on the Guarantee of Workers’ Retirement Benefits, and that the concept of “non-indicted workers” under Article 11 of the Labor Standards Act and Article 7-2(1) of the Enforcement Decree of the Labor Standards Act is divided into the number of employees employed in the workplace for 15 months or less than the same month.

However, the part of the court below's decision that the calculation should be made in accordance with Article 7-2 of the Enforcement Decree of the Labor Standards Act is difficult to accept for the following reasons.

The Guarantee of Workers' Retirement Benefits Act provides for matters necessary for the establishment and operation of the workers' retirement benefits system to contribute to the stable livelihood of the workers, thereby separating the retirement benefits system under the Labor Standards Act from January 27, 2005 to December 1, 2005. According to Article 3 of the Guarantee of Workers' Retirement Benefits Act and Article 1 of the Addenda of the same Act (amended by Jan. 27, 2005) and Article 2 of the Addenda of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22010, Sep. 29, 2010), the Guarantee of Workers' Retirement Benefits Act applies to all businesses or places of business that employ workers from December 1, 2005 to December 1, 2010.

Meanwhile, Article 11(1) of the Labor Standards Act provides that this Act shall apply to every business or workplace that employs not less than five full-time workers. Article 11(3) of the Labor Standards Act provides that the method of calculating the number of full-time workers in applying this Act shall be prescribed by Presidential Decree. Article 7-2(1) of the Enforcement Decree of the Labor Standards Act delegated by the Labor Standards Act provides that "the number of workers on a regular basis" under Article 11(3) of the Enforcement Decree of the Labor Standards Act shall be calculated by dividing the annual number of workers employed for one month (referring to the reason to determine whether the Act or this Decree applies, such as payment of temporary closure allowances and the application of working hours, if less than one month has passed from the date of establishment of the business) before the date of application of the Act in the relevant business or workplace (referring to the period after the date of establishment of the business). Article 11(3) of the Labor Standards Act provides that Article 7-2(3) of the Enforcement Decree of the Labor Standards Act shall be newly established on March 21, 2008, 208.

The Act on the Guarantee of Workers' Retirement Benefits was separately established in order to determine matters necessary for the establishment and operation of the retirement benefits system. From December 1, 2005, the Act on the Guarantee of Workers' Retirement Benefits applies to the employer's obligation to pay retirement allowances and punishment for violation thereof. Unlike the Act on the Guarantee of Workers' Retirement Benefits from December 1, 2010, the provisions of Article 11(3) of the Labor Standards Act and Article 7-2 of the Enforcement Decree of the Labor Standards Act are newly established after the enforcement of the Act on the Guarantee of Workers' Retirement Benefits. In light of the language of the Act, the method of calculating the number of workers ordinarily employed when the Labor Standards Act is applied, it is reasonable to calculate the number of workers ordinarily employed for one month prior to the date of retirement under Article 7-2 of the Enforcement Decree of the Labor Standards Act in order to determine whether to pay retirement benefits under the Act on the Guarantee of Workers' Retirement Benefits, it is unreasonable to deem that the Act on the Guarantee of Workers' Retirement Benefits to apply the Act on the grounds that it is difficult to apply to two years or more.

Therefore, the number of regular workers in order to determine whether to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act shall be calculated on the basis of the total period of service of the relevant worker. Here, the term "regularly" refers to situations where the number of workers is less than five in time and the number of workers becomes more than five in a state based on the objective judgment according to social norms, even if the number of workers becomes less than five in time, and it shall be interpreted that such term workers include not only the continuous workers in the relevant workplace but also the daily workers employed for such time (see Supreme Court Decision 2008Do364, Mar. 27, 2008).

Nevertheless, the court below did not calculate the number of regular workers in the workplace of this case on the basis of the total working period of the non-indicted, and concluded that the Guarantee of Workers' Retirement Benefits in the workplace of this case shall not apply by calculating the number of regular workers for one month before the date of his retirement pursuant to Article 7-2 of the Enforcement Decree of the Labor Standards Act. The court below erred by misapprehending the legal principles on the calculation of the number of

Therefore, 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 on the bench.

Justices Park Poe-dae (Presiding Justice)