(a) Where a person retires during a period of bonus payment, the additional statement of demand for bonus corresponding to such period of service;

(b) Continuous service period and the rate of payment of retirement allowances where a person is appointed as a daily employed worker and retires while on continuous service;

(c) In case where the amount of retirement allowance calculated in accordance with the operational guidelines providing for bonuses included in the calculation of retirement allowances is found to result in a return on the lower limit line under Article 28 of the Labor Standards Act, the validity of

(a) If a certain percentage of bonus has been paid periodically as bonus, it is recognizable that it is of the nature of a regular daily wage, and thus, barring any special provision, a bonus corresponding to the number of months during which a retired worker has worked may be claimed even before the expiration of the period for payment of bonus.

(b) Where a person has served as a daily worker and has been appointed as a regular worker, each period of service falls under the continuous service period which serves as the basis for the calculation of retirement allowances, and the period of service as a daily worker and the payment rate of retirement allowances during the period of service as a regular worker does not vary separately;

C. It is unlawful that the lower court’s judgment, even though it did not go against the Labor Standards Act, provided that bonuses included in the calculation of retirement pay in the operating guidelines, such as job pay and allowance of the company, and that the retirement allowance calculated in accordance with the guidelines, resulting in a failure to meet the lower limit under Article 28 of the Labor Standards Act, is unlawful.

A. Articles 18 and 36(b) of the Labor Standards Act. Articles 28 and 19 of the Labor Standards Act, Article 18 of the Enforcement Decree of the Labor Standards Act

Supreme Court Decision 81Meu174 delivered on November 24, 1981, 80Da617 delivered on May 27, 1980, 76Da1812 delivered on September 14, 1976, and 73Da105 delivered on December 24, 1974

Plaintiff

Korea General Chemical Industry Co., Ltd., Counsel for defendant-appellee

Gwangju High Court Decision 80Na389 delivered on March 5, 1981

The part of the lower judgment against the Defendant regarding retirement allowances shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal against the dismissed portion shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

With respect to Section 1

According to the facts duly established by the court below, the defendant company provided that bonus allowances shall be paid based on individual work performance according to the payment criteria set by the president. The payment criteria and payment timing shall be made twice a year; the last half of June; the last half of December; and the amount equivalent to 150 percent or 250 percent of ordinary monthly wages for all employees at the end of 1978; and the plaintiff paid to all employees an amount equivalent to 250 percent of ordinary monthly wages for the first half of 1978, which are retired by the plaintiff. Thus, if a certain ratio of bonus has been paid periodically as bonus, regardless of its name, it shall be deemed that the nature of the regular daily wage has the nature of all workers, and unless otherwise specified, a bonus corresponding to the number of months already worked for workers who retired before the expiration of the payment period of bonus shall be paid twice a year (see Supreme Court Decision 81Meu174, Nov. 24, 198); although the president of the defendant company had no special provision regarding the payment criteria for each of bonus at the end of February.

Therefore, the judgment of the court below that the amount equivalent to the number of months already worked among the semi-annual bonuses (six months) to the plaintiff who retired before the date of the payment of bonus should be paid as bonus is not justified.

With respect to Section 2:

According to the facts established by the court below, the plaintiff was employed as a daily employed worker from January 4, 1963 to May 31, 1964 and continued to work until he retires from May 2, 1978. In such a case, the total period of working as a daily employed worker and the total period of working as a regular employed worker constitutes the continuous work period which serves as the basis for the calculation of the retirement allowance. Since the period of working as a daily employed worker and the rate of the payment of retirement allowance is different from that of the regular employed worker, the above retirement allowance does not vary. Thus, the above total period should be calculated by applying the average wage and the rate of the payment of retirement allowance as the regular employed worker as of the time of the retirement for the total period of the above total period. Thus, the court below's judgment to the same purport is just and there is no error in the misapprehension of legal principles

With respect to Article 3:

According to the judgment of the court below and the judgment of the court of first instance as cited by the court below, it is clear that bonuses to be included in the average wage in the calculation of the retirement allowance in this case are bonuses to be paid by the plaintiff for the three-month period prior to his retirement and that the entry of the evidence No. 5 (Operational Guidelines such as Job Wages and Allowances) No. 5 does not interfere with this.

However, considering the above evidence No. 5 in light of the records, the defendant company stated that the bonus included in the calculation of the monthly amount of the retirement allowance in the operating guidelines such as job pay and allowance should be 3/12 of the bonus already paid, and if the retirement allowance calculated in accordance with the above guidelines exceeds the lowest limit under Article 28 of the Labor Standards Act, the above guidelines are not contrary to the Labor Standards Act, and the calculation of the retirement allowance in this case should also be governed by the above special provisions. However, although Eul evidence No. 5 does not interfere with its recognition, the court below held that the above evidence No. 5 is not sufficient or erroneous in the misapprehension of legal principles as to the calculation of the retirement allowance No. 5, and such illegality constitutes a case that significantly goes against justice and equity unless the judgment of the court below is reversed.

Therefore, the part of the judgment of the court below against the defendant regarding retirement pay shall be reversed, and this part of the case shall be remanded to the Gwangju High Court for further proceedings consistent with this Opinion. The defendant's remaining grounds of appeal shall be dismissed, and the costs of appeal as to this part shall be assessed against the defendant. It is so decided as

Justices O Sung-sung(Presiding Justice)