Whether the provisions on retirement allowances which do not provide average wages pursuant to Article 28 of the Labor Standards Act as the basis for the calculation of retirement allowances are valid.

The purpose of Article 28 of the Labor Standards Act is to ultimately set the lowest limit line of the amount of retirement allowance to be paid by an employer to a retired worker. Thus, it cannot be deemed that the provision of the Labor Standards Act is unlawful in violation of Article 28 of the Labor Standards Act if the amount of retirement allowance, which is not calculated on the basis of average wage, exceeds the minimum line guaranteed by the Labor Standards Act, even if the principal salary and job allowance cannot be considered as the basis for calculating the amount of retirement allowance, which is not calculated on the basis of average wage under the Labor Standards Act.

Article 28 of the Labor Standards Act

Supreme Court Decision 73Da105 delivered on December 24, 1974 (Kakad 10862, Supreme Court Decision 223Da1384 delivered on November 13, 1973, Supreme Court Decision 73Da1385 delivered on May 11, 1971 (Article 28(11)1), Supreme Court Decision 9657 delivered on June 19, 198, Article 28(7) of the Labor Standards Act, Article 28(7)19 of the Act, Article 28(7)159 delivered on November 13, 1973 (Article 28(1)1 of the Act, Article 28(7)1598 of the Act)

Plaintiff 1 and one other

Busan City Fisheries Cooperatives

Busan District Court (74Gahap877)

The original judgment shall be revoked.

All of the plaintiffs' claims are dismissed.

All the costs of lawsuit are assessed against the plaintiffs in the first and second instances.

The defendant shall pay to the plaintiff 1 the amount of 1,577,592 won, the amount of 1,519,164 won and the amount of 5% per annum from July 23, 1974 to the full payment.

The judgment that the lawsuit cost shall be borne by the defendant and the declaration of provisional execution are sought.

The same shall apply to the order.

From April 1, 1962 to October 2, 1973, and from October 20, 1973, Plaintiff 2 retired from office as an employee of the defendant association, respectively. At the time of retirement, Plaintiff 1 was paid KRW 1,058,400 from the defendant association according to the retirement benefit rules of the defendant association at the time of retirement, and Plaintiff 2 received KRW 1,126,80 from the defendant association as retirement allowance, there is no dispute between the parties.

However, according to the Labor Standards Act, the Plaintiffs’ legal representative must pay an employee a retirement allowance for at least 30 days for one year of his/her continuous service as a retirement allowance, and the average wage means the total amount of wages paid to the employee during the three-month period prior to the date on which the cause for calculating the amount of his/her average wage occurred and the total amount limited by the total number of days during the said three-month period. Thus, the wages, which are the basis for calculating the retirement allowance, refer to all money and valuables such as the current business allowance, meal allowance, special allowance, bonus, etc. paid to the employee in return for his/her work, other than the principal salary and position allowances, is not based on the average wage, and the part concerning the fixed amount of wages (main salary and position allowances) stipulated as the basis for calculating the retirement allowance, which is not based on the average wage, is invalid in violation of the Labor Standards Act, and thus, it has reached the claim for the payment of the retirement allowance calculated by the Defendant association

Article 28 of the Labor Standards Act provides that an employer shall establish a system for the payment of retirement allowances for not less than 30 days to the retired worker as a retirement allowance for the number of consecutive years. Here, average wages refer to 19 of the Act. The purport of Article 28 of the above Act is to stipulate the minimum amount of retirement allowances to be paid to the retired worker by the employer for not less than 3 years, and it is to stipulate that the amount of retirement allowances for less than 10 years should be calculated by multiplying the above fixed amount of retirement allowances for not less than 2 years by 10 years, and that the amount of retirement allowances for not less than 2 years should be calculated by 6 months as stated in the above provision of the Labor Standards Act, and that the amount of retirement allowances for less than 3 years should be calculated by multiplying the above fixed amount of retirement allowances for not less than 3 years by 10 months, even if the above provision of the Labor Standards Act provides that the amount of retirement allowances for less than 2 years and that the above provision of the Labor Standards Act is unlawful, and it cannot be viewed that the above provision of retirement allowances for not less than 1 year.

Therefore, the plaintiffs' claims for objection are without merit, and therefore they are dismissed. Since the original judgment is unfair with different conclusions and the defendant's appeal against them is reasonable, the original judgment is revoked in accordance with Article 386 of the Civil Procedure Act, and it is so decided as per Disposition by applying Article 96, Article 93, and Article 89 of the Civil Procedure Act with respect to the bearing of litigation costs.

[Attachment]

Judges Park Jae-sik (Presiding Judge) Lee Jong-dae et al.