[1] The method of calculating the average wage in a case where wages paid to a worker are composed of several items and some of such items among those items were paid significantly more than ordinary cases due to the worker's intentional act as a result of retirement

[2] In a case where an employee who is a taxi engineer intentionally paid the amount of excess taxi commission for the five months immediately preceding his/her retirement to receive more retirement allowances, the case holding that it is appropriate to calculate the average wage on the basis of the total amount of wages paid during the three-month period immediately preceding his/her intentional act as to the excess amount of taxi commission among the wage items received by the employee, calculated by multiplying the average wage on the basis of the wage for the three-month period immediately preceding his/her intentional act, by the "rate of increase of the average amount of excess taxi commission of the same employee during the intended act," and that the average wage should be calculated on the basis of the total amount

[1] In cases where it is inappropriate to calculate the average wage pursuant to the Labor Standards Act by intentionally increasing the average wage of a worker, the amount of retirement allowance shall be calculated based on the amount equivalent to the average wage that could have been calculated if the worker had not committed such intentional act. In such cases, the average wage shall be the amount equivalent to the amount calculated based on the wages that the worker had engaged in an act to intentionally increase the average wage for the three months immediately preceding that of the worker, barring special circumstances. However, such method of calculation shall be limited to the wage items reasonably high due to an intentional act of the worker. However, if the wage paid to the worker consists of multiple items, regardless of the fact that the wage paid to the worker was remarkably higher due to the intended act of the worker, it is a mixture of the wage items paid to the worker regardless of the fact that the wage amount was remarkably higher than the wage amount paid to the worker as the intended act of the worker, the average wage amount shall be calculated based on such reasonable and reasonable method of calculation of the wage amount for the three months immediately preceding month period, as prescribed in the Labor Standards Act.

[2] In a case where an employee who is a taxi engineer intentionally paid excess taxi commissions for the five months immediately preceding his/her retirement in order to receive more retirement allowances, the case holding that it is appropriate to calculate the average wage on the basis of the total amount of wages paid during the three-month period immediately preceding his/her intended act by multiplying the amount of average wages calculated on the basis of the wage for the three-month period immediately preceding his/her intended act, by the "ratio of increase in excess of the average taxi commission for the same worker during the three-month period during which he/she intentionally committed such an intentional act," and that the average wage should be calculated on the basis of the total amount of wages paid during the three-month period prior to his/her retirement

[1] Articles 19 (see current Article 2(1)6) and 34 (see current Article 34) of the former Labor Standards Act (wholly amended by Act No. 8372, Apr. 11, 2007); Article 8(1) of the Guarantee of Workers' Retirement Benefits Act / [2] Article 19 (see current Article 2(1)6), Article 34 (see current Article 34) of the former Labor Standards Act (wholly amended by Act No. 8372, Apr. 11, 2007); Article 8(1) of the Guarantee of Workers' Retirement Benefits Act

[1] Supreme Court Decision 94Da8631 delivered on February 28, 1995 (Gong1995Sang, 1443) Supreme Court Decision 97Da18936 delivered on January 20, 1998 (Gong1998Sang, 561)

Plaintiff (Law Firm citizen, Attorneys Lee Young-hoon et al., Counsel for plaintiff-appellant)

Defendant Co., Ltd. (Attorney Lee Im-san, Counsel for defendant-appellant)

Supreme Court Decision 2006Da42313 Decided November 9, 2006

Suwon District Court Decision 2006Na10096 Decided September 13, 2007

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

The grounds of appeal are examined.

Since the retirement allowance system aims to guarantee a worker's ordinary life as before, even in cases where the "wages paid to the worker during the three months prior to the date on which such cause occurred" which is the basis of the calculation of the amount of the amount of the retirement allowance, is considerably more than the ordinary wage due to special reasons, it cannot be said that it violates the fundamental purpose of the system that guarantees the ordinary life of the worker as before (see Supreme Court Decisions 94Da8631, Feb. 28, 1995; 97Da18936, Jan. 20, 1998; 97Da18936, Jan. 20, 1998; 97Da18937, May 28, 2009). In such cases, the amount of the average wage should be calculated separately by a reasonable and reasonable method that can reflect the ordinary living wage of the worker at the time of retirement, and if an employee intentionally engages in an act for the purpose of calculating the average wage, it should be calculated as the standard of the Labor Standards Act.

However, such calculation method shall be applicable only to the wage item that has been significantly high due to the intended act of workers. If there are several items of wages paid to workers, and regardless of the fact that the wage items were remarkably increased due to the intended act of workers among such wage items, the average wage should be calculated based on the wage for the three months immediately preceding the intended act of workers, as prescribed by the Labor Standards Act. However, with respect to the wage items irrelevant thereto, the average wage should be calculated based on the wage for the three months prior to the retirement in accordance with the basic calculation method prescribed in the Labor Standards Act. Furthermore, even if such intentional act of workers was based on the wage for the three months immediately preceding the intended act of workers, the reasonable and reasonable method should be reflected in the average wage level for the same wage items during the three months immediately preceding the retirement period, as long as there are reasonable and reasonable circumstances to deem that the change of the wage level for the workers at least the same time was made in the same business or workplace with respect to the same wage items during the immediately preceding retirement period.

The lower court determined that the monthly average taxi commission exceeding 1.76 times that the Plaintiff intentionally paid from December 2001 to April 202, 202, which was the date before the Plaintiff retired on May 1, 2002, would have reached approximately KRW 1.76 times of the monthly average taxi commission that was paid from January 201 to November 201. On the other hand, the Plaintiff’s act of using the amount of excess taxi commission that was paid from January 201 to April 202 as well as the monthly average wage that was paid from January 201 to April 200 for the Plaintiff’s basic taxi commission that was paid from February 201 to April 202 as well as the monthly average wage that was paid from January 2, 201 to April 200 to the Plaintiff’s basic taxi commission that was paid from January 20 to April 20, 200 to the Defendant Company. Meanwhile, the Plaintiff applied for the Plaintiff’s license for retirement allowance for the same period as the Plaintiff’s individual taxi commission.

However, even based on the factual basis duly established by the lower court, the wage items that the Plaintiff received from the Defendant Company are divided into basic pay, various allowances, bonuses, etc., and the excess taxi commission amount. Of these various wage items, the Plaintiff’s intentional act to increase the average wage is limited to the excess amount of taxi commission, and thus, it cannot be used as the basis for calculating the average wage for calculating retirement allowances under the Labor Standards Act should be limited to the excess amount of the above taxi commission.

In addition, as recognized by the lower court, in the case of other taxi drivers of Defendant Company, who were in a position similar to that of the Plaintiff among the union members who paid excess taxi commissions to Defendant Company as well as the Plaintiff, and were in a similar position in working conditions or work performance, the monthly average taxi commission exceeding the monthly average taxi commission paid to the Plaintiff during the period excluded from the average wage of this case during the period of time from January 201 to November 2001 shall have increased approximately 1.39 times compared to that paid during the period of time from January 201 to November 2001, there is sufficient room to presume that the average level of the excess taxi commission paid to the Plaintiff and the same workers of the same kind in the Defendant Company during the period excluded from the average wage of this case is higher than the previous period.

As can be seen, in the instant case where only the portion of excess earnings out of the taxi commission that the Plaintiff received during the period excluded from the average wage of this case was significantly increased due to the Plaintiff’s intentional act, and furthermore, in the instant case where, among taxi drivers of the Defendant Company, it appears that the level of wages in excess of taxi commission paid to the Plaintiff and its employees would have increased to a certain extent, the average wage should be calculated according to the method prescribed by the Labor Standards Act, based on the “total amount of excess earnings in excess of taxi commission received by the Plaintiff for the three months immediately preceding the period excluded from the average wage of this case,” barring any other special circumstances, the average wage should be calculated by multiplying the amount of average wages by “the rate of increase in earnings in excess of the average taxi commission of the Plaintiff and the same workers among the taxi drivers belonging to the Defendant Company during the period excluded from the average wage of this case,” and the aforementioned legal principle should be established as the standard for calculating the amount of average wages in the immediately preceding three months based on the “amount of wages paid by the Plaintiff during the previous three months.”

Therefore, the court below calculated the amount of wages paid during the three-month period prior to retirement with respect to the remaining wage items except for excess taxi commissions, among the wage items received by the plaintiff, and should have deliberated on the average rate of increase in excess of taxi commissions by the plaintiff and workers of the same kind among taxi drivers belonging to the defendant company during the period of exclusion from the calculation of the average wage of this case, and should have calculated the average wage, which serves as the basis for the calculation of the amount of retirement allowances to the plaintiff. However, the court below calculated the average wage for all of the wage items on the basis of the total wage that the plaintiff received during the three-month period immediately preceding the period of exclusion from the calculation of the average wage of this case. Thus, the court below erred by misapprehending the legal principles on the method of calculating the amount of average wage, which serves as the basis for calculation of the amount of retirement allowances, and by failing

The ground of appeal pointing this out is with merit.

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

Justices Yang Chang-soo (Presiding Justice)