Whether a provision prohibiting retirement allowance system under the former Labor Standards Act applies mutatis mutandis to seafarers subject to the former Seafarers' Act (affirmative)

Article 128 of the former Seafarers' Act (amended by Act No. 3751 of Aug. 7, 1984) provides that "Except as otherwise provided in this Act, with respect to the seafarer's work, Article 28 (2) of the former Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980) and Article 28 (2) of the Addenda of the former Seafarers' Act shall apply mutatis mutandis to the seafarer's work subject to the former Seafarers' Act. Thus, even if the seafarer's work is included in one business and the employee is included, the retirement allowance system applicable to the largest worker among all workers, including the seafarer, shall be deemed as the retirement allowance system applicable to the largest worker within the pertinent business pursuant to Article 2 of the Addenda of the former Seafarers' Act.

Article 28(2) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997); Article 28(2) of the Addenda (amended by Act No. 34(2)); Article 128 of the former Seafarers’ Act (amended by Act No. 3751, Aug. 7, 1984);

Plaintiff (Attorney Kim Kang-won, Counsel for the plaintiff-appellant)

Hanjin Shipping Co., Ltd. (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na17942 delivered on July 16, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 28(2) of the former Labor Standards Act (amended by Act No. 3349, Dec. 31, 1980; hereinafter the same) provides that a different system shall not be provided within one business in establishing a retirement allowance system. The legislative purport of the above provision is to prohibit discrimination by setting different retirement allowance systems within one business from each other in the type of occupation, position, and business within one business and to apply a single retirement allowance system. While the rules of employment violate the above provision, if the employer fails to report to the Minister of Labor by March 31, 1981 (i.e., the unification of the rules of employment) the rules of employment in violation of the above provision, it shall be deemed that the retirement allowance system applicable to the largest number of workers within one business as of April 1, 1981 shall be applied to all workers from the same day (see, e.g., Supreme Court Decision 2005Da7365, Jul. 36, 195). 8, 199>

Meanwhile, Article 128 of the former Seafarers' Act (amended by Act No. 3751, Aug. 7, 1984; hereinafter the same) provides that "except as otherwise provided in this Act, with respect to the seafarer's work, Article 28 (2) of the former Labor Standards Act and Article 28 (2) of the Addenda of the former Seafarers' Act shall apply mutatis mutandis to the seafarer's work subject to the former Seafarers' Act. Thus, even if the seafarer's work is included in one business and the worker who does not do so, the retirement allowance system applicable to the largest worker among all workers, including the seafarer, shall be deemed as the retirement allowance system applicable to the largest worker within the business in question pursuant to Article 2 (2) of the Addenda of the former Seafarers' Act.

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below acknowledged on Sep. 1, 1980 that, with respect to the seamen (members on the sea) at the time when the plaintiff joined the defendant company as the land owner company as the telegraph of the defendant company, the rules of employment (hereinafter referred to as the "Rules of Employment at Sea") stipulated the rules of employment, which provides the retirement allowance system in which the amount calculated by multiplying the average wage at the time of retirement by the total number of years of continuous service as retirement pay by the total number of years of continuous service as retirement pay. On the other hand, with respect to the land owner, the court below recognized the fact that the amended Rules of Employment (hereinafter referred to as the "Rules of Employment at Sea") stipulated the rules of employment which provide the retirement allowance system in which the average wage at the time of continuous service as retirement pay for one month as the retirement allowance for the seamen at the time of the revision of the Rules of Employment at the time of one workplace, the plaintiff is legally subject to the Rules of Employment at that time.

In light of the records and the above legal principles, the court below's fact-finding and judgment are just, and there is no error in the misapprehension of legal principles as to Article 28 (2) of the former Labor Standards Act and Article 28 (2) of the Addenda of the former Labor Standards Act as otherwise alleged in the ground of appeal. The supplementary appellate brief filed after the lapse of the deadline for submitting

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)