[1] The method of determining which amount of wages is included in the calculation of a retirement allowance under the provision of a certain place of business

[2] The case holding that allowances, overtime allowances, holiday allowances, monthly allowances, and annual allowances, which are included in the standard wages when calculating the amount of retirement allowances under the provision of benefits, are included in the standard wages when calculating the amount of monthly allowances, and they are interpreted as monthly allowances, overtime allowances, holiday allowances, monthly allowances, and annual allowances, which are paid to all employees every month in accordance with the provision of benefits and the wage agreement between labor and management

[3] In a case where the rules of employment formulated and revised disadvantageously to workers without the worker's consent by collective decision-making method are recognized to be reasonable by social norms, whether such rules of employment can be applied (affirmative), and the standard for determining the reasonableness thereof

[4] The requirements for bonus to be recognized as a wage and the point of time to determine whether bonus is included in the average wage which is the basis of the calculation of the retirement allowance

[1] In a case where the wage rules in a business place provide for the wage which forms the basis for the calculation of a retirement allowance, what kind of benefit is included shall be determined by the objective interpretation of the above provisions, and the interpretation of the above provisions shall take into account various circumstances such as the payment practice of the business place in question and the developments leading up to the revision of the above provisions and its contents.

[2] The case holding that allowances, overtime allowances, holiday allowances, monthly allowance, and annual allowance are included in the standard salary when calculating the amount of the retirement allowance under the provision of the salary, and the long-term continuous service allowances, household subsidies, and commuting subsidies, which are paid to all employees every month in a fixed amount under the provision of the salary and the wage agreement between labor and management, are included in the standard salary when calculating the amount of the retirement allowance.

[3] In principle, the employer's unilateral formulation and revision of new rules of employment to impose unfavorable working conditions by depriving of the rights and interests of the employee's vested in the employer through the unilateral formulation and revision of new rules of employment shall not be allowed. However, even if the preparation or revision of the rules of employment is considered in both the necessity and content of the plan and the degree of disadvantage that the employee may suffer, in a case where it is acknowledged that it is reasonable under the generally accepted social norms to the extent that it is possible to recognize the legal norm of the pertinent provision, the application may not be denied solely on the ground that there is no consent by collective decision-making by the worker who was subject to the previous rules of employment or the rules of employment. On the other hand, whether it is reasonable under the generally accepted social norms should be determined by comprehensively taking into account the degree of disadvantage that the employee would suffer due to the amendment of the rules of employment, the necessity and degree of the amendment, the reasonableness of the contents of the rules of employment after the amendment, the situation of improvement

[4] If a bonus is continuously and regularly paid and the amount of the bonus is determined, the nature of the wage that is paid as compensation for work, or the occurrence of the cause for payment is uncertain and temporary payment cannot be deemed as wages, and the issue of whether the bonus can be included in the average wage that serves as the basis for the calculation of retirement allowances should be determined at the time of retirement, barring special circumstances.

[1] Articles 18 (see current Article 18), 19 (see current Article 19), and 28 (see current Article 34) of the former Labor Standards Act (Amended by Act No. 5309, Mar. 13, 1997); / [2] Articles 18 (see current Article 18), 19 (see current Article 19), and 34) of the former Labor Standards Act (Amended by Act No. 5309, Mar. 13, 1997); / [3] Article 95 (see current Article 97) of the former Labor Standards Act (Amended by Act No. 5309, Mar. 13, 1997); / [4] Article 18 (see current Article 19 (see current Article 38 (see current Article 19) of the former Labor Standards Act); Article 19 (see current Article 18 (3) of the former Act (Amended by Act No. 5309, Mar. 13, 19997)

[1] Supreme Court Decision 99Da71276 delivered on March 27, 2001 (Gong2001Sang, 1015), Supreme Court Decision 97Da25095 delivered on March 13, 1998 (Gong1998Sang, 1015), Supreme Court Decision 9Da71276 delivered on September 29, 200 (Gong2000Ha, 2186), Supreme Court Decision 9Da70846 delivered on January 5, 2001 (Gong201Sang, 419) / [3] Supreme Court Decision 9Da70846 delivered on January 5, 2001 (Gong201Sang, 419) / [4] Supreme Court Decision 82Da342 delivered on October 26, 198 (Gong1983, 588) 198Da196389 delivered on November 1965, 1982

Plaintiff 1 and one other (Attorney Park Young-soo, Counsel for the plaintiff-appellant)

○○○○○○ Research Institute, a foundation (Attorneys Kim Young-sub et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na32026 delivered on February 6, 2001

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeal is dismissed.

1. Summary of the judgment below

A. The first instance judgment cited by the lower court recognizes the following facts based on the employed evidence.

(1) On April 6, 1968, Plaintiff 1 joined the Defendant Research Institute and was in continuous service on 25 April 28, 198, and resigned on April 30, 1996, and Plaintiff 2 was employed on May 10, 1967 and served on 21 June 29, 196.

(2) On July 9, 1980, the Defendant Research Institute issued a proposal for the adjustment of the payment rate of retirement allowances according to the number of years of service for executives and employees from the Minister of Trade, Industry and Energy, which was the supervisory agency, and subsequently revised the wage rules to the effect that the payment rate of retirement allowances was adjusted downwardly as of July 1, 1980 (hereinafter “the first amendment”). Around January 23, 1981, the Defendant Research Institute issued a proposal for the reduction of the payment rate of retirement allowances from the officers and employees from the Minister of Trade, Industry and Energy, and revised the benefit rules to the effect that it would be adjusted downwardly as of January 1, 1981 (hereinafter “the second amendment”).

(3) Article 19(2) of the second revised salary regulations provides that “The base salary for the calculation of the employee’s retirement allowance shall be the total amount of basic wages, allowances (the monthly salary paid to all employees per month: special allowances, overtime allowances, holiday allowances, monthly allowances, annual allowances), and bonuses.”

(4) The basic salary at the time of the retirement of the plaintiffs, including overtime allowances, monthly allowances, average monthly allowances for three months before the retirement of food expenses, average monthly allowances for one month of annual allowances, and average monthly bonuses for one year. With respect to the payment rate according to the continuous service period, the payment rate prescribed before the amendment from the date of entry to June 30, 1980, the payment rate prescribed by the first amended provision from July 1, 1980 to December 31, 1980, and the payment rate prescribed by the second amended provision from January 1, 1981 to retirement, respectively.

B. The lower court determined that: (a) it is an example that the allowances listed in the standard salary under Article 19(2) of the above wage provision are included in the standard salary, and that the Defendant Research Institute’s monthly allowances are included in the standard salary, based on the premise that the monthly allowances paid by the Defendant Research Institute to all the employees of each month are included in the standard salary, the special bonus, long-term continuous service allowances, physical training allowances, effective leave allowances, household subsidies, and commuting subsidies are all paid to all the employees of each month, and thus, they should be included in the standard salary; and (b) the special performance bonus

2. Judgment on the Defendant’s grounds of appeal

A. On the first ground for appeal

In a case where the wage rules in a certain place of business provide for the wages which form the basis for the calculation of retirement allowances, what kind of wages should be included shall be determined by the objective interpretation of the above provisions, and in the interpretation of the above provisions, the purport of the above provisions should be taken into account by comprehensively examining various circumstances, such as the payment practices of the relevant place of business and the developments leading up to the revision of the above provisions and its contents (see Supreme Court Decisions 99Da45376 delivered on September 29, 200, 99Da71276 delivered on March 27, 200).

In light of the record, the provision of the first revised Act provides that the total amount of the salary paid (including bonuses) in the three-month period prior to the date on which the grounds for calculating the standard salary for the calculation of the retirement allowance occurred. However, in the first revision, the standard salary for the calculation of the retirement allowance was determined as the basic salary (this salary, position allowance, continuous service allowance) and the monthly average bonus at the time of retirement, and it was determined as the sum of the basic salary, allowances (the monthly fixed amount paid to every employee: the special allowance, the overtime allowance, the holiday allowance, the monthly allowance, the annual allowance) and the bonus as prescribed in the current provision. The above provision provides that the amount of the monthly fixed amount of the retirement allowance paid to the employees of the research institute is less than half of the standard monthly fixed amount of the retirement allowance, while it is difficult to increase the amount of the monthly fixed amount of the monthly fixed amount of the retirement allowance paid to the employees of the research institute due to the measures such as expanding the export inspection and inspection fees, and the amount of the monthly fixed amount of the monthly fixed amount of the allowance paid to the Plaintiffs.

Therefore, the judgment of the court below which included the long-term continuous service allowance, household subsidy, and commuting subsidy in the standard wage when calculating the retirement allowance prescribed in the payment rules of the Defendant Research Institute is just and there is no illegality such as incomplete hearing as alleged in the ground

However, according to the records, the physical training expenses paid 200% of the basic salary in two to three installments a year, and the filial leave expenses paid in two times a year and in the month in which it falls. Since it cannot be deemed to fall under the monthly salary, it shall not be included in the standard salary when calculating the retirement allowance stipulated in the above salary regulations.

Nevertheless, the court below included the physical training expenses and filial leave expenses in the standard salary when calculating retirement allowances, and it cannot be said that there was an error of misconception of the fact or erroneous interpretation of Article 19(2) of the above salary regulations, and it has influenced the judgment. Therefore, the part of the defendant's ground of appeal pointing this out has merit.

B. On the second ground for appeal

The judgment of the court of first instance, as cited by the court below, states that Article 19 (6) of the Benefit Regulations provides that "other wages than regular bonuses shall not be included in the calculation standards of retirement allowances," and thus, it is recognized that the above provision did not exist until the time when the labor-management consultation on December 13, 1990 was reached with respect to the amendment of the Benefit Regulations, and thus, it is ratified as newly established after the labor-management consultation on December 13, 1990. This case rejected the defendant's assertion on the ground that the above provision is not applicable to the plaintiffs in this case where there is no assertion or proof that the defendant's consent to the establishment of the above provision was made in a collective decision-making manner as disadvantageous to the workers.

In principle, it is not permissible for an employer to unilaterally impose working conditions by depriving an employee of his/her rights or interests through the preparation and revision of a new rules of employment. However, even if the preparation or revision of the rules of employment is considered in both the necessity and content of the plan and the degree of disadvantage that the employee may suffer, if it is deemed reasonable under the generally accepted social norms to recognize the legal norm of the provision, the application may not be denied solely on the ground that there is no consent by the collective decision-making method of the employee under the application of the previous rules of employment or the rules of employment. On the other hand, the existence of rationality under the generally accepted social norms should be determined by comprehensively taking into account the degree of disadvantage that the employee would suffer by the amendment of the rules of employment, the content and degree of the necessity of the amendment, the reasonableness of the contents of the rules of employment after the amendment, measures to be taken, etc., the situation of improvement of other working conditions related to the labor union, etc., the process of negotiations with

According to the records, even if the amount of retirement allowance calculated under the Labor Standards Act exceeds the amount of retirement allowance even if special bonus, etc. is excluded from the standard wage which serves as the basis for the calculation of retirement allowance due to a high leakage rate in the payment of retirement allowances, the defendant is an affiliated organization of the Industrial Promotion Agency, and the labor union of the defendant agreed to amend the payment rules on the calculation of retirement allowance on December 13, 1990. In light of the fact that the defendant's research institute increased basic salary through the wage agreement with the labor union every year, it seems that the defendant's labor union was involved in the amendment of the provision on wages after labor-management consultation on December 13, 1990. The court below did not err in the misapprehension of the above provision on the ground that the defendant's labor union did not have any influence on the necessity of the establishment of the above provision and the degree of disadvantage suffered by workers due to the lack of the aforementioned provision, the situation of improvement of the working conditions, and the circumstances leading to the establishment of the above provision.

3. Judgment on the Plaintiff’s grounds of appeal

A. As to the special performance grade

If bonuses are continuously and regularly paid and the amount of payment is determined, it shall not be deemed that the nature of the wage paid as compensation for work is uncertain and the occurrence of the cause for payment is not fixed and temporary payment, and whether the bonus can be included in the average wage which serves as the basis for the calculation of retirement allowances shall be determined at the time of retirement unless there are special circumstances (Supreme Court Decision 97Da18936 delivered on January 20, 1998).

According to the records, the plaintiffs received 100% of the basic salary at the end of 1995 as special performance wage, and with respect to the special performance wage to be paid at the end of 1996, when the amount exceeds 96 business plans in the wage agreement between labor and management concluded on November 21, 1995, the special bonus corresponding to the excess amount must be separately paid. However, this cannot be deemed to have been confirmed because there is no provision regarding the specific payment criteria, the number of payments, and the due date for payment in excess of the business plan, and there is no provision regarding the specific payment criteria, the payment shall not be deemed to have been made. If the plaintiffs retire at the time of their retirement, the special performance rate in 195 was only one time, and it is unclear whether the special performance wage will continue to be paid at the time of their retirement, and therefore it cannot be deemed to have the nature of the wage as continuous and regular payment.

Therefore, the judgment of the court below excluding the special bonus from the standard wage is just, and there is no illegality of misunderstanding the legal principles as to the special bonus.

B. As to the children education allowance

According to the reasoning of the judgment below, the court below held that child education allowances, which are stipulated in the wage regulations to be paid quarterly to employees with children attending middle and high schools, do not constitute a fixed monthly allowance to all employees every month, and thus does not constitute a standard wage when calculating retirement allowances prescribed in the wage regulations. The judgment of the court below is just and there is no illegality in the misapprehension of legal principles as to child education allowances.

4. Therefore, the part of the defendant's grounds of appeal against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)