[1] Whether the average wage, which serves as the basis for the calculation of a retirement allowance, is limited to the part which an employer can manage or control the total income earned by an employee (affirmative)

[2] In a case where a taxi driver directly brings about the excess of taxi commission out of transport income to an individual income, whether such portion constitutes the average wage that serves as the basis for calculating the amount of retirement pay (negative)

[1] The retirement allowance provision under the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) is a mandatory provision ordering an employer to pay a retirement allowance with the employer's contribution, so the total amount of the retirement allowance must be contributed by the employer. Thus, in order to ensure predictability in the payment of the retirement allowance, the average wage, which is the basis of the calculation of the retirement allowance, shall be limited to the part which the employer can manage or control the total income earned by the employee.

[2] In a case where a taxi driver paid a daily taxi commission, etc. and directly reverts to himself/herself as personal income, the occurrence of the personal income portion or the scope of the amount is not specified, and thus, it cannot be known that the personal income portion of the taxi driver did not have any possibility of management or control. Therefore, the personal income portion of the taxi driver should not be included in the average wage, which is the basis for the calculation of retirement pay.

[1] Article 28 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 28 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

[2] Supreme Court Decision 91Da36192 delivered on December 24, 1993 (Gong1994Sang, 494), Supreme Court Decision 94Da8631 delivered on February 28, 1995 (Gong195Sang, 1443 delivered on December 6, 1996), Supreme Court Decision 96Da36524 delivered on December 6, 1996 (Gong197Sang, 202)

Plaintiff 1 and five others (Attorney Kim-hee, Counsel for the plaintiff-appellant)

old U.S. Transportation Co., Ltd. (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

Daegu High Court Decision 95Na765 delivered on November 8, 1995

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the Plaintiffs’ grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the plaintiffs' claim that the defendant company should pay to the defendant company a total amount of 10,000 won for retirement pay of 24 hours per day from the defendant company as well as 54,00 won for retirement pay of 10,00 won for retirement pay of 194 as the total amount of 24 hours per day from the defendant company as a taxi driver, who was employed in the defendant company around 1985 through 1987, and retired from office on June 20, 1994, and the defendant company should pay a total amount of 10,000 won for retirement pay of 5 hours per day from the total amount of 194,00 won for retirement pay of 10,000 won for the retirement pay of 10,000 won for the remaining amount of 10,000 won for retirement pay of 20,000 won per day from the defendant company's total amount of 10,000 won for retirement pay.

Since the retirement allowance provision under the former Labor Standards Act is a mandatory provision ordering an employer to pay a retirement allowance with the employee's contribution, the total amount of the retirement allowance shall be contributed by the employer at all times, and in order to ensure predictability in the contribution of such retirement allowance, the average wage, which is the basis for the calculation of the retirement allowance, shall be limited to the part which the employer can manage or control the total income earned by the employee.

However, the plaintiffs of this case, among daily transportation revenues, directly reverted to themselves the remaining amount after paying the taxi commission, etc. among the individual's daily transportation revenues, and the occurrence of the individual revenue portion or the scope of the amount is not specified. Thus, the defendant company cannot know how much the individual revenue portion of the plaintiffs were generated, and there was no possibility of management or control. Thus, the individual revenue portion of the plaintiffs should not be included in the average wage, which is the basis of the calculation of retirement allowances.

The reasoning of the court below's decision on retirement allowance is that there is room for misunderstanding the financial resources of retirement allowances to be borne by workers, and its conclusion of rejecting the plaintiffs' claims is justifiable, and it cannot be said that there was a violation of the law that affected the conclusion of the judgment or a violation of the Supreme Court's decision, as otherwise alleged in the ground of appeal. There is no ground for appeal.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)