(a) The case reversing the judgment of the court below on the ground that the employer's consent on disadvantageous changes in the rules of employment was obtained when the board of directors adopts a resolution in lieu of consent by collective decision-making method and the consent by the representative of the workers on the ground that the rules of remuneration were modified disadvantageously because the labor union is not established and the workplace is 17 or more industrial accidents across the country and approximately 2,00 workers

(b) The case holding that it cannot be said that an implied consent or ratification was made solely on the fact that workers did not raise any objection to the amendment of the remuneration regulations at the time of the amendment of the remuneration regulations or thereafter at the time of the conclusion of the collective agreement;

(c) The case holding that it is not reasonable in terms of social norms to amend remuneration regulations without the consent of a worker group;

(d) Where a person is stipulated to reduce his/her retirement allowance amount when he/she is dismissed or removed automatically by serving a punishment of imprisonment without labor or heavier punishment, the case holding that the retirement allowance amount may be paid within the scope not violating the relevant Acts and subordinate statutes, such as Article 28 of the Labor Standards Act, regardless of how the grounds for

(e) Number of days during which a person was detained for personal crimes and released from position, and whether the amount of wages received during such period is included in the basis for calculating the average wage under the main sentence of Article 19 (1) of the same Act;

(a) The case reversing the judgment of the court below on the ground that the employer's consent on disadvantageous changes in the rules of employment was obtained when the board of directors adopted a resolution in lieu of consent by collective decision-making method and the consent of the representative of workers was obtained, because the labor union is not established and the workplace is 17 or more industrial accidents across the country and there were about 2,200 workers' water supply.

B. The case holding that it cannot be readily concluded that workers’ implied consent or ratification was made with respect to the amendment of the remuneration regulations on the sole basis that workers did not raise any objection when concluding collective agreements three times after the amendment of the remuneration regulations, and that labor unions did not raise any objection thereto.

C. Even if the amendment of remuneration regulations was made in accordance with the government’s coordination policy to eliminate managerial difficulties of government-invested institutions and to promote equity with the general public due to the fact that the level of wages of the executives and employees belonging to government-invested institutions at the time of the amendment is too high, it cannot be deemed that it is reasonable in terms of social norms that may not be subject to the consent of the employees group

(d) If a provision provides that the amount of retirement benefits shall be reduced where a worker is dismissed automatically or is removed by disciplinary action upon being sentenced to imprisonment without prison labor or heavier punishment, the amount of retirement benefits may be reduced to the extent that the worker does not violate relevant Acts and subordinate statutes, such as Article 28 of the Labor Standards Act, regardless of how the worker was sentenced to imprisonment without prison labor or heavier punishment,

E. The period in which a person was detained and released from his position after being detained for personal crime does not fall under any of the periods stipulated in Article 2 of the Enforcement Decree of the Labor Standards Act. Thus, the number of days of the period and the amount of wages paid during the period cannot be excluded from the basis for calculating the average wage under the main sentence of Article 19(1) of the Labor Standards Act. If the average wage is reduced due to the low amount of the average wage due to the guardian’s inclusion of the period and wages, the average wage shall be calculated by applying the ordinary wage as the average wage pursuant to Article

(a)(c) Article 95(1)(d) of the former Labor Standards Act (amended by Act No. 4099, Mar. 29, 1989); Article 28(e) of the Labor Standards Act; Article 19 of the same Act; Article 2 of the Enforcement Decree of the same Act

A. (B) Supreme Court Decision 93Da17898 delivered on Aug. 24, 1993 (Gong1993Ha, 2606). Supreme Court Decision 91Da2505 delivered on Feb. 25, 1992 (Gong1992, 1125). 92Da39778 delivered on Jan. 15, 1993 (Gong1993Sang, 710). Supreme Court Decision 92Da32357 delivered on Nov. 27, 1992 (Gong193Sang, 259). Da.92Da49324 delivered on Nov. 26, 1993 (Gong193Sang, 863).

[Defendant-Appellee] Plaintiff 1 and 1 other

Attorney Kim Dong-hwan, Counsel for the defendant-appellant

Seoul High Court Decision 91Na33621 delivered on April 10, 1992

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

A. Regarding ground of appeal No. 1

According to the reasoning of the judgment of the court below, the court below held that if the defendant Corporation obtains the resolution of the board of directors and the consent of the representative of workers in the amendment of the above remuneration regulations on the ground that the amendment of each remuneration provision as of January 1, 1981 and December 1, 1986 of the defendant Corporation reduces the retirement allowance payment rate and limits the scope of benefits to be included in the average wage, which is the basis of the calculation of retirement allowances, and thus it is evident that the workers are disadvantageous to the employees, but at the time, the defendant Corporation did not establish a trade union, and 17 or more employees were scattered across the country, and since 2,200 employees' waterworks was 2,00 workers' waterworks, it is practically impossible to ask all workers' intentions by the collective decision making method, the defendant Corporation shall be deemed to have obtained the consent of the employees necessary for the amendment of the rules of employment and the amendment of the above remuneration provision as of December 1, 1986.

However, since an employer has the authority to prepare and amend the rules of employment as a matter of principle, an employer may prepare and amend the rules of employment according to his/her own intent, but if it is intended to amend the rules of employment disadvantageously to an employee, it is necessary to consent by the collective decision-making method of the employee under the previous rules of employment or the rules of employment. Any amendment to the rules of employment without such consent is null and void. If there is a labor union organized by a majority of the employees, the consent should be obtained in accordance with the method of the meeting. If there is no such labor union, the consent by the meeting method should be obtained from the majority of the employees. In this case, the consent by the meeting method is permissible in exchange of opinions between the employees under the condition that the intervention or interference of the employer is excluded by the organization or unit department of one business or one place of business, and it is difficult to obtain the consent of the employee's general meeting in lieu of the members' established opinion (see Supreme Court Decision 91Da2505 delivered on February 25, 192; Supreme Court Decision 91Da451652.).

B. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below held that there was no explicit dissenting opinion from workers until ten years have passed since January 1, 1981, in which the revised remuneration regulations were enforced, and that there was an implied consent or ratification with regard to the modification of the above remuneration regulations, as long as the defendant's construction trade union was established and entered into a collective agreement three times, and no objection was raised thereto.

However, in order to have confirmed the amendment of the above remuneration regulations by the employees of the Defendant Corporation or the labor union, the employees or the labor union should have known that the amendment was null and void, and the fact that the employees did not raise any objection to the amendment of the above remuneration regulations through three times after the amendment of the respective remuneration regulations that the said labor union concluded a collective agreement and did not raise any objection thereto cannot be readily concluded that there was an implied consent or ratification among the employees with respect to the amendment of the above remuneration regulations. Therefore, whether there was a discussion about the validity of the amendment of the above remuneration regulations between the employees after the amendment of the above remuneration regulations, and whether there was any discussion about the validity of the amendment of the above remuneration regulations at the time of the conclusion of the said collective agreement more than three times, it is erroneous in the misapprehension of necessary deliberation or by misapprehending the legal principles on ratification, thereby adversely affecting the conclusion of the judgment. The grounds for the guidance is with merit.

C. Regarding ground of appeal No. 3

According to the reasoning of the judgment below, the court below held that it is reasonable under the social norms to amend the remuneration rules for the retirement benefits with the content that the retirement benefits payment rate for the period prior to the amendment should follow the previous provisions in order to achieve the management rationalization of government-invested institutions, but even if each of the above remuneration rules was revised in accordance with the government's adjustment policy to eliminate the management difficulties of government-invested institutions due to the excessive high level of wages for the executives and employees belonging to government-invested institutions at the time of the amendment, and to promote the equity with the general public, it cannot be deemed that it is reasonable under the social norms that can cause the failure of the workers' group to obtain the consent, even if it was conducted in accordance with the adjustment policy for the government-invested institutions to resolve the management difficulties due to the excessive high level of wages for the executives and employees belonging to government-invested institutions at the time of the amendment, the above provision alone cannot be deemed to be reasonable in light of the opinion of the party members (see Supreme Court Decision 89Meu24780 delivered on March 13, 1990; 92Da49324).

2. We examine the grounds of appeal by the defendant's attorney.

A. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below determined that Article 21(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes, which stipulates that the payment of retirement allowances shall not be permitted if the plaintiff was sentenced to imprisonment without prison labor or heavier punishment due to the violation of the Road Traffic Act, and the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes, and the Road Traffic, and that Article 21(1) of the same Act, which stipulates that the amount of retirement allowances shall be reduced if the plaintiff was sentenced to imprisonment without prison labor or heavier punishment, is not applicable to the case

However, the above provision provides that the amount of retirement benefits shall be reduced if the defendant corporation is dismissed automatically or is removed by disciplinary action after being sentenced to imprisonment without prison labor or a heavier punishment, and even after examining the language and text of the above provision or the relevant provision, there is no ground to interpret the above provision in a limited manner as stated in the judgment below. As long as the plaintiff was sentenced to imprisonment without prison labor or a heavier punishment, the defendant corporation may pay the amount of retirement benefits to the extent that it does not violate the relevant laws and regulations, such as Article 28 of the Labor Standards Act. Accordingly, the other judgment of the court below is erroneous in the interpretation of Article 21(1) of the above provision, which affected the conclusion of the judgment, and therefore, it is reasonable to point

B. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below presumed that Article 2 of the Enforcement Decree of the Labor Standards Act provides that the amount of the average wage shall be deducted from the calculation of the average wage for the medical treatment of injury or disease caused by the performance of duties, the period of suspension of duties due to reasons attributable to the employer, the number of days during the period of suspension of duties due to reasons attributable to the employer, the number of days during the period of suspension of duties, and the amount of wages paid during the period of suspension of duties is not consistent with the purpose of the average wage system that calculates the average value of actual wages paid in relation to the premise that the provision of normal work is provided, but it is the same as that of the plaintiff when the worker was released from his position and fails to provide normal work due to his/her failure. Thus, Article 2 of the Enforcement Decree of the Labor Standards Act applies mutatis mutandis, and the number of days paid during the period

However, since the period in which a person was detained and released from his position for personal crime like the plaintiff does not fall under any of the periods stipulated in Article 2 of the Enforcement Decree of the above Act, the number of days and the amount of wages paid during the period cannot be excluded from the average wage calculation basis under the main sentence of Article 19(1) of the Labor Standards Act. If the average wage is lower due to the decline in the amount of average wages due to the decrease in the amount of average wages due to the inclusion of the period and wages, the ordinary wage should have been calculated by applying the average wage as the average wage under Article 19(2) of the Labor Standards Act. On the contrary, the court below calculated the average wage by excluding the number of days of the period in which the person was released from his position and the amount of wages during the period from the average wage calculation

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ansan-man (Presiding Justice)