(a) The nature of bonuses which the Korea Coal Corporation has customarily paid to its employees;

(b) Whether the calculation of retirement allowance may be omitted if the bonus at the time of retirement exceeds the minimum line of retirement allowance stipulated in Article 28 of the Labor Standards Act even though it is not based on the calculation of retirement allowance; and

1. The Korea Coal Corporation’s bonus equivalent to 100% of the ordinary wage which has been customary since 1964 once every three months to its employees shall be considered as the kind of wages paid periodically and systematically as the price corresponding to the work. Article 24 of the above Rules on the Wage of the Construction Works provides that “The payment shall be made with the approval of the Minister of Trade, Industry and Energy, but the payment shall not be considered as a mutually advantageous payment.”

2. Even if the employees of the Korea Coal Corporation do not make bonuses at the time of their retirement the basis for the calculation of retirement allowances, the bonus having the nature of wages may not be the basis for the calculation of retirement allowances provided that the bonus exceeds the minimum limit of the amount of retirement allowances provided in Article 28 of the Labor Standards Act.

Plaintiff 1 and 64 others (Attorneys Lee Im-soo et al., Counsel for plaintiff-appellant)

Korea Coal Corporation (Attorney Jeon Young-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 75Na1311 delivered on January 28, 1976

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

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

According to the facts established by the court below, the defendant Corporation at the time of retirement of the plaintiffs (the plaintiffs retired from office from office from September 30, 1972 to March 16, 1973) provides that "the Corporation may pay a bonus of not more than 100 percent of ordinary wages once a year according to the management performance" in Article 24 of the Employee Wage Rules, which provides that "it shall be paid with the approval of the Minister of Trade, Industry and Energy," but it shall be concluded on July 8, 1972 between the defendant Corporation within the labor union to which the plaintiffs belonged and the defendant Corporation, which was enforced from July 1, 1972 to June 30, 1973, Article 20 provides that "the Corporation shall pay a bonus of not more than 100 percent of ordinary wages once a year according to the management performance, and Article 3 of the above Wage Rules provides that "the Corporation has paid a bonus of not more than 100 percent of the basic salary and allowances, regardless of the basic salary and allowances and it shall be paid to the employees 14 per year or 16th year.

If so, this bonus should be considered as a kind of wage paid periodically and systematically as the price corresponding to the work provided by the employees of the defendant corporation, and the above wage provision should be considered as a kind of wage for the purpose corresponding to the work provided by the employees of the defendant corporation, and it should not be considered that the defendant corporation simply pays it to the employees in a mutually advantageous manner by considering the fact that there is a door that the above wage provision "it can be paid with the approval of the Minister of Trade, Industry and Energy."

Therefore, the judgment of the court below that the calculation of the average wage, which is the basis for the calculation of the retirement allowance of the defendant corporation, should include the bonus received by the plaintiffs for three months before retirement, is just, and there is no error in the misapprehension of the legal principles of the Labor Standards Act or in the misapprehension of the above provisions.

In addition, Article 28 of the Labor Standards Act in the novels pointed out is a provision that sets the lower limit limit of the amount of retirement allowances that the employer should pay to the retired employee. Thus, even if the interpretation of the relevant provisions of the defendant corporation at the time of retirement of the plaintiffs does not provide bonuses as above based on the calculation of retirement allowances, it cannot be said that the bonus exceeds the lower limit of the above provision.

Therefore, this appeal is 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 Shin Young-chul (Presiding Justice)