Plaintiff 1 and five others (Law Firm citizen, Attorneys Kim Nam-nam et al., Counsel for the plaintiff-appellant)

East Asia Pharmaceutical Co., Ltd. (Law Firm Squa, Attorney Lee Jae-ri, Counsel for the defendant-appellant)

Suwon District Court Decision 2010Gahap3624 decided August 25, 2011

March 30, 2012

1.The judgment of the first instance shall be modified as follows:

A. The defendant:

(1) With respect to KRW 51,026,624 and KRW 26,487,123 among them, 6% per annum from January 15, 2010 to August 25, 201, and the remainder of KRW 24,539,501 to April 13, 2012, 6% per annum for Plaintiff 1;

(2) With respect to KRW 48,734,019 and KRW 22,413,354 among them, 6% per annum from January 15, 2010 to August 25, 201, and the remainder 26,320,665 won, 6% per annum from January 15, 201 to April 13, 2012;

(3) As to Plaintiff 3’s KRW 85,430,69 and KRW 52,936,455 among them, 6% per annum from July 15, 2009 to August 25, 201, the remainder of KRW 32,494,244 shall be 6% per annum from July 15, 2009 to April 13, 2012;

(4) As to Plaintiff 4’s KRW 76,159,872 and KRW 37,93,786 among them, 6% per annum from January 15, 2010 to August 25, 2011, and the remainder of KRW 38,16,086, 6% per annum from January 15, 201 to April 13, 2012;

(5) With respect to KRW 51,040,267 and KRW 34,002,759 among them, 6% per annum from January 15, 2010 to August 25, 201, the remainder of KRW 17,037,508 shall be 6% per annum from January 15, 2010 to April 13, 2012;

(6) As to Plaintiff 6’s KRW 91,369,636 and KRW 49,532,608 among them, 6% per annum from January 15, 2008 to August 25, 2011, and the remainder 41,837,028, 6% per annum from January 15, 2008 to April 13, 2012;

Each day from the day to the day of full payment shall be paid 20% interest per annum.

B. All remaining claims of the plaintiffs are dismissed.

2. 3/5 of the total litigation costs is assessed against the plaintiffs, and the remainder is assessed against the defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from the date stated in the "Initial Date of Delay Damages" column of the attached Table to the "Additional Retirement Allowance Status Table" (hereinafter referred to as the "attached Table") and each of the above amounts to the above amounts to the day of full payment.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff falling under the order to pay additional amounts under the judgment of the court of first instance shall be revoked. The defendant shall revoke the part against the plaintiff 1,60,424,037 won and its related expenses from January 15, 2010; 168,59,176 won and its related expenses from January 15, 2010 to the plaintiff 2; and 14,345,805 won and its related expenses from July 15, 2009 to the plaintiff 3; 161,130,539 won and its related expenses from January 15, 2010 to the plaintiff 4; 113,098,45 won and its related expenses from January 15, 2010 to the plaintiff 5; 15,271,632, and each of them shall be repaid at the rate from January 15, 201 to 15 to 2005.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiffs' claims as to that part are dismissed in entirety.

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no counter-proof in light of the whole purport of the pleadings in each of the statements in Gap evidence 1 through 11, Eul evidence 1 through 3, and evidence in 27 through 33 (including each of the numbers).

A. The Defendant is a company established for the purpose of manufacturing and selling medicine, chemical medicine, etc., and the Plaintiffs are employees who were employed by the Defendant and retired from office.

B. The Plaintiffs initially joined the Defendant on the date indicated in the “Initial Membership Date” column of the attached Table, but submitted a written resignation on the date indicated in the “First Retirement Date” column of the attached Table for military service (hereinafter “First Retirement Date”). Moreover, the Plaintiffs completed military service on the date indicated in the “Attachment Table” column of the attached Table, and were transferred to the Defendant on the date indicated in the “Ex-Post Death Date” column of the attached Table.

C. The defendant, at the time of the first retirement of the plaintiffs, could be treated as a leave of absence, but in the event of active duty service, he was entitled to receive a resignation from the plaintiffs on the ground that it was the company policy to receive a resignation after completing the military service.

D. At that time the Defendant had received corrective measures from the Ministry of Patriots and Veterans Affairs at the time, and did not have any example to allow active duty servicemen to take a leave of absence.

E. At the time of the first retirement, the Plaintiffs received retirement allowances as indicated in the “first retirement allowance” column in the attached Table from the Defendant.

F. Article 63 of the Defendant’s Rules of Employment (hereinafter “Rules of Employment before Amendment”) applicable at the time of the Plaintiffs’ initial employment (hereinafter “Rules of Employment”) provides that “If an employee who has served for at least one year retires, the following retirement allowances shall be paid on the basis of his average wage at the time of his retirement.” (1) If the employee has served for at least one year, the amount equivalent to 30 days’ average wage every year; (2) if the employee has served for at least eight years, the amount equivalent to the former 8 years and the average wage every year exceeding eight years; (3) if the employee has served for at least 15 years, the amount equivalent to the former 2 years and the amount exceeding 90 days’ average wage every year exceeding 15 years; and (4) if the employee has served for at least 22 years, the amount equivalent to the former 3 years and average wage every one year exceeding 22 years; and (5) if the employee has served for at least one year, the amount exceeds 16 months but less than six months during the period (hereinafter “the retirement allowance”).”

G. On July 1, 1979, the Defendant amended the rules of employment on retirement allowance payment rate with the consent of the workers (hereinafter referred to as "amended rules of employment"), and Article 63 of the amended rules of employment provides that " When an employee who has served for at least one year in the company retires, the amount equivalent to 30 days of his/her average wage at the time of his/her continuous retirement shall be paid as retirement allowance for the one year in which he/she has served: Provided, That where an employee who has served for at least one year in the company retires, the amount equivalent to 30 days of his/her average wage at the time of his/her continuous retirement shall be paid as retirement allowance: Provided, That the amount of his/her continuous service period of less than one year in the year shall be paid on a daily basis (hereinafter referred to as

H. The Defendant prepared the “Rules on Interim Settlement of Retirement Allowances” (hereinafter “Rules on Interim Settlement of Retirement Allowances”) from October 1, 200, and implemented them from October 1, 200. Articles 3(3) and 8(3) of the Regulation on Interim Settlement of Accounts provide that the interim settlement date shall be the last day of each month, and that the calculation of continuous service period and the payment rate of retirement allowances after interim settlement shall be based on the provisions on new retirement allowances from the time of settlement of accounts. The Defendant prepared the said interim settlement provision without the consent of the employees

(i) Article 42(3) of the former Rules of Employment provides that a company may order a temporary retirement when an employee is called for a long time under the Military Service Act or the Mobilization of Labor Force in Wartime, and Article 44(1) and (3) of the same Rules provides that a person temporarily laid off retains his/her status as an employee, but is not engaged in his/her duties, and the temporary retirement period is not included in the company’s continuous service period (Article 42 subparag. 3 of the amended Rules of Employment).

(j) After the enforcement of the interim settlement provision, the Plaintiffs filed an application for interim settlement of retirement allowances by signing on the printed application form with the same text stating “I agree to newly calculate the amount of retirement allowances after the interim settlement date from the first day of the following month of the settlement date.” At that time, the Plaintiffs submitted the accompanying documents for the application for interim settlement (the accompanying documents stipulated in Article 3(1) of the interim settlement provision) (hereinafter “second retirement”) to resign from the office (hereinafter “second retirement”).

(k) Upon the above application, the Defendant paid the Plaintiffs with each of the retirement allowances stated in the separate sheet “Intermediate retirement allowance” column, and the above retirement allowance is not stated in the Plaintiffs’ “Initial Entrance Date” table, but as indicated in the “former Entrance Date” column, and it refers to the last day of the month of the application for interim settlement according to the interim settlement provisions from that time to that time. However, in the case of Plaintiff 4, it was calculated by applying the progressive retirement pay system under the rules of employment prior to the amendment for the period from that time to February 28, 2001.

(l) The Plaintiffs received retirement allowances indicated in the “final retirement allowance” column of the attached Table from the Defendant as of the date indicated in the “final retirement date” column of the attached Table from the Defendant, respectively, and the said retirement allowances were calculated by applying the revised rules of employment to the period from the date following the date of interim settlement of the Plaintiffs’ retirement allowances to the date of final retirement.

(m) At the time of the final retirement of the Plaintiffs, monthly average wage was KRW 5,388,793 for Plaintiff 1, KRW 5,147,292 for Plaintiff 2, KRW 5,061,445 for Plaintiff 3, KRW 4,750,308 for Plaintiff 4, KRW 4,729,420 for Plaintiff 5, and KRW 5,128,065 for Plaintiff 6.

2. Validity of the primary retirement;

A. Whether the Constitution and the former Military Service Act are violated

(1) Article 39(1) of the Constitution provides that “All citizens shall have the duty of national defense under the conditions as prescribed by Act,” and Article 39(2) provides that “any person shall not be disadvantageously treated due to the performance of his duty of military service” and accordingly, Article 69(2) of the former Military Service Act (amended by Act No. 2259 of Dec. 31, 1970, and amended by Act No. 3696 of Dec. 31, 1983, hereinafter the same applies) provides that the head of the State or a public organization, a public enterprise, or a public or private organization shall be suspended from office and shall be reinstated when a public official, executive, or employee enters the military for active duty or actual duty service.

(2) He returned to the instant case, and according to the above facts of recognition, the Defendant, under the name of company policy, received and dismissed a written resignation in a lump sum on the grounds that the Plaintiffs were active duty service, and accordingly, the Plaintiffs, who completed the military service and re-entered, did not receive any disadvantage that the period for military service to be recognized as the continuous service period, as seen thereafter, was not recognized as the continuous service period. Therefore, it is reasonable to deem that the Plaintiffs’ submission of a written resignation, the retirement and re-admission of the Defendant, as such, violates Article 39(2) of the Constitution of the Republic of Korea and Article 69(2) of the former Military Service Act and Article 39(2) of the former Military Service Act,

(b) Whether a conspiracy or a false representation is made with knowledge that the other party is not a true one;

According to the above facts and the above evidence, Article 42 subparagraph 3 of the Rules of Employment before the defendant's amendment at the time of the plaintiff's first retirement stipulates that the defendant's retirement may be ordered at the time of the defendant's retirement. However, the defendant did not receive a written resignation order from the Minister of Patriots and Veterans Affairs, except the non-party 1 who was subject to corrective measures and processed the temporary retirement, and the defendant submitted a written resignation notice with the knowledge that he was retired only in the document, and that he was reinstated as a matter of course after the military service, and the defendant actually continued to have worked after the military service, and the defendant recognized the work experience before the first retirement in the salary class, promotion examination, etc. like the restoration after the retirement of the re-employed plaintiffs, the plaintiff submitted a written resignation notice without the defendant's intention to retire, and the defendant was able to receive a written resignation notice formally from the plaintiffs, and then re-enter the retirement after the military service, and in fact, the plaintiffs were even after the completion of the military service, and thus, the plaintiff is not aware of the other party's's intention of retirement or retirement.

C. Determination as to the defendant's argument on the validity of the primary retirement

(1) As to this, the defendant's submission of the plaintiffs' resignation was made by the plaintiffs' person, and the defendant's above policies were not forced to resign, and the defendant's aforementioned policies were planned to be re-entered, barring any special circumstances, since the service period is short, the service period of active duty servicemen is about three years or more, and it cannot be deemed that the defendant's re-enters are planned, and it cannot be said that the situation in which the active duty servicemen were employed temporarily before the military service and had the intention to re-elect the workplace after the military service, and therefore, it cannot be said that the defendant's act of submitting the plaintiffs' resignation and the defendant's retirement and re-enters disposition are valid.

(2) Therefore, the defendant's voluntary resignation submission of the plaintiffs' voluntary resignation or the statement of No. 30, which seems consistent with this, is hard to believe in light of the above facts acknowledged as follows, such as the submission of a uniform resignation according to the company policy as seen earlier, the plaintiffs' entire service period and continuous service after re-entry, etc., and it is insufficient to recognize only the statements of No. 27 through No. 29, and No. 33 are insufficient. As seen earlier, the defendant's submission of a written resignation in a lump sum regardless of the plaintiffs' intent under the name of the company policy, can be evaluated as forcing the submission of a written resignation and compelling the submission of a written resignation regardless of the plaintiffs' intention. In light of the Constitution and the former Military Service Act, the active service period is equal to that of the plaintiffs, and there is no evidence to acknowledge that the plaintiffs actively resisted against the submission of a written resignation at the time of the plaintiffs' retirement, and the defendant's retirement and re-employment are invalid. Therefore, the above assertion by the defendant is without merit.

D. Sub-committee

Therefore, since the primary retirement of the plaintiffs is null and void, it is reasonable to view that the plaintiffs continued to maintain their status as workers from the date of their initial employment, and pursuant to Article 69(2) of the former Military Service Act and Article 42 subparag. 3 of the Defendant’s former Rules of Employment before the revision, the plaintiffs were temporarily retired from military service for the period from the date of the submission of the written resignation to the date of the re-employment (hereinafter “the period of the plaintiffs’ temporary retirement”).

3. Whether the plaintiffs' temporary retirement period is recognized as continuous service period

A. Whether the Plaintiffs’ leave period is included in the continuous service period

As seen earlier, Article 44(3) of the former Rules of Employment provides that “The period of leave of absence shall not be included in the company’s continuous service, except in the case where the company recognizes it.” In full view of the entire arguments in subparagraphs 1 and 2 of the evidence No. 1-2, it can be acknowledged that the defendant included the period of the military service in the continuous service for the defense soldier and non-party 1 who was on active service for the military service, and Article 5 of the former Labor Standards Act (amended by Act No. 3349 of December 31, 1980) provides that the employer shall not discriminate against the worker on the ground of nationality, religion, or social status and shall not discriminate against the worker on the working conditions on the ground of nationality, religion, or social status, barring any special circumstance, the Plaintiffs’ temporary retirement period is not included in the Plaintiffs’ retirement period under Article 44(3) of the former Rules of Employment No. 1468, Dec. 31, 198.

B. Whether the period from the date of the plaintiffs' temporary retirement to the date of re-admission is included in the continuous service period

(1) The plaintiffs completed their military service and re-enter the period less than 13 days, and the fact that 9 months were more than 27 months is as seen earlier.

(2) Therefore, we examine whether the period from the day after the date of expulsion to the day before the date of re-admission of the plaintiffs' temporary retirement is included in the continuous service period. This problem occurs due to the defendant's desire to engage in invalid acts under the company's policies and can be viewed as being responsible for the defendant's temporary retirement. In light of the whole purport of the arguments in the evidence Nos. 31, 32-1, 33, the non-party 2 among the workers can not be viewed as being included in the defendant's request for re-admission of the above fact that the defendant submitted a resume to the Ansan factory that had worked before his retirement on March 2, 1979 (the end of evidence No. 32-1) after the completion of his military service on April 1, 1978 and the defendant's request for re-admission of the defendant's temporary retirement period cannot be viewed as being included in the 1st century's request for re-admission of the above facts.

4. The effects of secondary retirement and interim settlement of retirement allowances;

A. Judgment on the plaintiffs' assertion

(1) The plaintiffs' assertion

At the time of the second retirement, ① the submission of the plaintiffs’ resignations was formal for the interim settlement of retirement allowances. ② The interim settlement of retirement allowances was made in accordance with the defendant’s unilateral management policies to suspend the application of the progressive retirement pay system to the employees employed before June 30, 1979, and the plaintiffs were not required to apply for interim settlement because they did not have any urgent economic necessity. However, the plaintiffs filed an application for coercion and the transfer of the plaintiffs, who are production workers, to a business position, to make the voluntary retirement. Therefore, it is null and void since it is difficult for the defendant to adapt to them, and thus, it

(2) The validity of the expression of intention of retirement by the submission of private staff

The fact that the plaintiffs submitted resignation as a document attached to the interim settlement at the time of the application for interim settlement, and Article 3(1) of the Regulation on the interim settlement also stipulates that the resignation shall be submitted as a document attached to the application for interim settlement. According to the above facts of recognition, the plaintiffs submitted resignation without the intention to retire at the time, and the defendant also submitted resignation only formally even though he was aware of this fact. Thus, it is reasonable to deem that the declaration of retirement by the submission of private employees is invalid as a false declaration of intention, which is known to the effect that the other party is not a false declaration

(3) The validity of interim settlement

(A) Considering the overall purport of the arguments as to the evidence Nos. 35 and 41 as well as the testimony of Nonparty 3 of the first instance trial, the production workers at the time of interim settlement are likely to be exposed to disadvantages such as transfer to business positions if they do not apply for interim settlement, etc. In addition, while only about 22% (389 out of 1,729) of the employees subject to the fractional retirement pay system applied for interim settlement of retirement pay, it can be acknowledged that about 88% of the employees subject to the short-term retirement pay system, such as the plaintiffs, applied for interim settlement of retirement pay. However, as shown above, it is consistent with the Plaintiffs’ interim settlement of retirement pay application by coercion or intimidation of the Defendant company, evidence Nos. 19, 20, 24 through 26, 34, 35, 37, and 42 of the evidence No. 37 and evidence No. 27 of the above evidence No. 19 cannot be found otherwise in light of the following evidence No. 37 evidence No.

(B) Rather, the above facts and evidence Nos. 3, 4 through 10, 16, 17, 34 through 26, 41, and 41, each of the testimony of Non-Party 3, Non-Party 4, and Non-Party 5 can be seen as being known to the overall purport of the pleading. In other words, the reasons for applying for interim adjustment of retirement pay submitted by the plaintiffs are as follows: (a) the reasons for applying for interim adjustment of retirement pay are that the non-party 3 did not actively submit an interim adjustment of the company's retirement pay to the non-party 9 as a witness; (b) the non-party 1 appears to have been forced to apply for interim adjustment of the company's retirement pay to the non-party 1; (c) the non-party 2 did not appear to have applied for interim adjustment of the company's retirement pay to the non-party 9 as a witness of the company's interim adjustment of the accounts; and (d) the defendant did not have applied interim adjustment of the company's retirement pay to the non-party 20.

(b) Scope of continuous service period for which retirement allowances are adjusted halfway;

(1) The interim settlement of retirement allowances is established when an employee demands interim settlement of retirement allowances for all or part of the period of his/her continuous service, and an employer approves interim settlement of the period of his/her demand. In this case, an employer may not conclude such agreement by unilaterally implementing interim settlement of accounts only for a part of the period of his/her request. However, if an employer’s interim settlement of accounts for a part of a period constitutes a new offer with the consent of modification under Article 534 of the Civil Act, and it can be deemed that an employee consented to such interim settlement of accounts by receiving the said interim retirement allowances without any objection, the interim settlement is established within the scope of a part of the period during which the interim settlement of accounts is implemented (see Supreme Court Decision 2006Da20542, Feb. 1, 2008).

(2) The case returned to the instant case, and the period of leave of absence for the Plaintiffs’ military service is included in the period of continuous service, and thus, the Defendant paid interim settlement retirement allowances calculated by the Defendant’s initial date of the initial employment as the initial date of the continuous service period to the Plaintiffs. However, in light of the legal principles as seen earlier, it is reasonable to deem that an interim settlement agreement was reached between the Plaintiffs and the Defendant regarding the period from the date of the initial employment to the base date of the interim settlement, by receiving the erroneously calculated interim settlement allowances without any objection.

C. Determination as to the defendant's defense of extinction of prescription

(1) Defendant’s defense

The plaintiffs' right to claim retirement allowances unpaid from the first entry to the date of interim settlement has expired three years since the base date of interim settlement.

(2) Determination

(A) With respect to a part of the period of employment for which the interim settlement of retirement pay was established under the agreement between the employer and the employee, the claim for interim settlement at the time of interim settlement occurs, and the period of extinctive prescription is calculated from that time. However, with respect to the remaining period of employment for which no interim settlement agreement was reached, the claim for retirement pay occurred on the date of final retirement, and the extinctive prescription

(B) Examining the instant case in light of the aforementioned legal principles, it is reasonable to view that the retirement allowance for the period from the date of the first entry of the Plaintiffs to the date of the second entry of the Plaintiffs, which did not reach an agreement between the Plaintiffs and the Defendant, arose on the date of the Plaintiffs’ final retirement, but the retirement allowance for the period from the date of the Plaintiffs’ second entry to the date of interim settlement

(C) Therefore, even if the portion of the Plaintiffs’ claim for retirement benefits against the Defendant was unpaid, the extinctive prescription has expired three years since the date of interim settlement base. Accordingly, the Defendant’s defense is with merit within the aforementioned recognition scope.

5. Calculation of accrued final retirement allowances.

(a) Calculation of continuous service period and criteria for the payment rate of retirement allowances;

As seen earlier, the Defendant’s implementation of the interim settlement provision to the effect that the rate of calculation of continuous service period and the rate of payment of retirement allowances after the interim settlement of accounts for retirement allowances is based on the fractional amount of retirement allowances on October 1, 2000. However, such part constitutes an unfavorable modification of the rules of employment to workers who were employed before June 30, 1979, subject to the progressive amount of retirement allowances under the rules of employment prior to the amendment, and the fact that the Defendant did not obtain consent from the employees on the above modification is recognized as above (in addition, it is insufficient to recognize that the Plaintiffs consented to the above amendment of the rules of employment just because the above content was written in the above interim settlement application form with the same word). Accordingly, the above part is null and void in violation of Article 97(1) of the former Labor Standards Act (wholly amended by Act No. 8372, Apr. 11, 2007). Thus, it is reasonable to revise the rules of employment prior to the calculation of continuous service period and payment of retirement allowances to the Plaintiffs.

(b) Application of the retirement allowance progressive rate according to the continuous service period;

(1) As seen earlier, the Plaintiffs’ claim for retirement allowances for the period from the first date of their retirement to the date of their retirement, and the claim for retirement allowances for the period from the date following the interim settlement date to the date of their retirement.

(2) In addition, in light of the fact that each of the above retirement allowances claims occurred only on the last retirement day, and that the continuous service period cannot be deemed to refer only to the continuous service period, it is right to apply the progressive rate by adding up the service period rather than applying the progressive rate separately by the period.

(3) Therefore, Plaintiff 1’s continuous service period is 4 years and 6 months from February 1, 1974 to August 15, 1978 (the day immediately before the date of the initial retirement) and 8 years and 6 months from July 1, 2001 (the day following the interim settlement base date) to December 31, 209 (the date of the final retirement) and 13 years if they were reduced according to the rules of employment before the revision, and 18 months (the final retirement pay is 8 + 5 + 2) if they were applied.

(4) Next, Plaintiff 2’s continuous service period is 4 years and 20 months from February 1, 1974 to April 20, 1978 (the day immediately preceding the date of the initial entry) and 8 years and 6 months from July 1, 2001 (the day following the interim settlement base date) to December 31, 209 (the date of the final retirement), and 13 years if it is increased according to the rules of employment before the revision, and 18 months if it is applied, the final retirement pay amount is 18 months (8+5 x 2).

(5) Next, Plaintiff 3’s continuous service period from March 18, 1970 (the first entry date) to June 8, 1978 (the day immediately preceding the date of re-admission) is 8 years and 22 years in total from July 1, 2001 to June 30, 209 (the date following the interim settlement base date). 16 years and 22 years in case of reduction according to the previous rules of employment, and 25 months in case of applying the progressive rate, the final retirement pay is 25 months (8 x (7 x 2).

(6) Next, Plaintiff 4’s continuous service period is seven years and four months from April 13, 1971 to August 15, 1978 (the day immediately preceding the date of the initial entry) and eight years and ten months from March 1, 2001 (the day following the interim settlement base date) to December 31, 2009 (the date of the final retirement). 16 years and six years if the amount was reduced according to the rules of employment before the amendment, and the amount of the final retirement pay is 25 months [8 + (7+2) + (1 x 3].

(7) Next, Plaintiff 5’s continuous service period from January 29, 1973 to April 16, 1978 (the day immediately preceding the date of the initial entry) and December 19, 200 to December 31, 209 (the date following the interim settlement base date) were 14 months and 14 years if it was reduced according to the rules of employment before the revision, and the final retirement pay amount was 20 months (8+6 x 2) if it was applied.

(8) Finally, Plaintiff 6’s continuous service period is 8 years and 14 months in total from September 1, 1968 to May 14, 197 (the day immediately preceding the date of the initial entry) and 7 years and 1 months in total from December 1, 2000 to December 31, 207 (the date following the interim settlement base date) and 16 years in total, and 16 years in case of increase according to the rules of employment before the change, and the final retirement allowance is 25 months in application of the progressive rate.

(9) As to this issue, the plaintiffs asserts that the employment relationship is severed and newly joined after the interim settlement of retirement allowances, and that the progressive rate should also be applied considering the interim settlement period in determining the retirement allowance payment rate for the period after the interim settlement of retirement allowances. However, the interim settlement of retirement allowances system stipulated in the law that has been entrusted with the interpretation of the Labor Standards Act amended on December 31, 1996 and the Labor Standards Act enacted on March 13, 1997. Thus, if a long-term worker or a majority worker retires at once or due to difficulties in corporate financial situation, it is introduced in consideration of the need to prevent the increase of company's burden and to utilize the same when urgent livelihood stability funds are needed. However, the Supreme Court, as a matter of principle, adopts the provision on retirement allowances from 290 to 300 to 290 to 299 to 200 to 300 to 290 to 290 to 200 to 290 to 329.

(c) Average wages;

As seen earlier, the average wage at the time of the final retirement is KRW 5,388,793 for Plaintiff 1, KRW 5,147,292 for Plaintiff 2, KRW 5,061,445 for Plaintiff 3, KRW 4,750,308 for Plaintiff 4, KRW 4,729,420 for Plaintiff 5, and KRW 5,128,065 for Plaintiff 6.

(d) Unpaid final retirement allowances;

(1) In the case of Plaintiff 1, the amount calculated by subtracting KRW 45,841,650 from KRW 96,98,274, which is the average wage for 18 months ( KRW 5,388,793 x 18 months), which is 51,026,624, which is paid as the first retirement allowance, as well as the final retirement allowance.

(2) In the case of Plaintiff 2, the amount calculated by subtracting KRW 43,787,237 from KRW 92,651,256 (won 5,147,292 x 18-month amount), which is the average wage of 18-months, KRW 48,734,019, which was paid as the primary retirement pay, and KRW 43,787,237, which was paid as the final retirement pay.

(3) In the case of Plaintiff 3, 126,536,125 won (5,061,445 won x 25 percent) (in the case of Plaintiff 3, the average wage of 25 months) plus KRW 40,505,426, which was paid as the first retirement allowance and the final retirement allowance, 85,430,69, which was paid as the first retirement allowance.

(4) In the case of Plaintiff 4, 118,757,70 won (4,750,308 won x 25 months x 25 months), which is the average wage of 25 months, calculated by subtracting KRW 41,97,828 from KRW 61,97,82, which was paid as the primary retirement pay and the final retirement pay.

(5) In the case of Plaintiff 5, the amount calculated by subtracting KRW 43,368,133 from KRW 94,58,40,40 ( KRW 4,729,420 x 20 x 20 months), which is the average wage of KRW 20,00,000, which is the average wage of KRW 51,040,267.

(6) In the case of Plaintiff 6, 128,201,625 won (5,128,065 won x 25 months) (in the case of Plaintiff 6, the average wage for 25 months) calculated by subtracting KRW 36,331,989 from KRW 50,00 which was paid as the primary retirement pay and the final retirement pay. 91,369,636 won.

6. Conclusion

그렇다면 피고는, ① 원고 1에게 51,026,624원과 그 중 제1심 인용 금액인 26,487,123원에 대하여는 그 변제기 이후로서 원고 1이 구하는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 제1심 판결 선고일인 2011. 8. 25.까지는 상법에서 정한 연 6%, 당심 인용 금액인 나머지 24,539,501원에 대하여는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 당심 판결 선고일인 2012. 4. 13.까지는 연 6%, ② 원고 2에게 48,734,019원과 그 중 제1심 인용 금액인 22,413,354원에 대하여는 그 변제기 이후로서 원고 2가 구하는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 제1심 판결 선고일인 2011. 8. 25.까지는 상법에서 정한 연 6%, 당심 인용 금액인 나머지 26,320,665원에 대하여는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 당심 판결 선고일인 2012. 4. 13.까지는 연 6%, ③ 원고 3에게 85,430,699원과 그 중 제1심 인용 금액인52,936,455원에 대하여는 그 변제기 이후로서 원고 3이 구하는 2009. 7. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 제1심 판결 선고일인 2011. 8. 25.까지는 상법에서 정한 연 6%, 당심 인용 금액인 나머지 32,494,244원에 대하여는 2009. 7. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 당심 판결 선고일인 2012. 4. 13.까지는 연 6%, ④ 원고 4에게 76,159,872원과 그 중 제1심 인용 금액인 37,993,786원에 대하여는 그 변제기 이후로서 원고 4가 구하는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 제1심 판결 선고일인 2011. 8. 25.까지는 상법에서 정한 연 6%, 당심 인용 금액인 나머지 38,166,086원에 대하여는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 당심 판결 선고일인 2012. 4. 13.까지는 연 6%, ⑤ 원고 5에게 51,040,267원과 그 중 제1심 인용 금액인 34,002,759원에 대하여는 그 변제기 이후로서 원고 5가 구하는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 제1심 판결 선고일인 2011. 8. 25.까지는 상법에서 정한 연 6%, 당심 인용 금액인 나머지 17,037,508원에 대하여는 2010. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 당심 판결 선고일인 2012. 4. 13.까지는 연 6%, ⑥ 원고 6에게 91,369,636원과 그 중 제1심 인용 금액인 49,532,608원에 대하여는 그 변제기 이후로서 원고 6이 구하는 2008. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 제1심 판결 선고일인 2011. 8. 25.까지는 연 6%, 당심 인용 금액인 나머지 41,837,028에 대하여는 2008. 1. 15.부터 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 당심 판결 선고일인 2012. 4. 13.까지는 연 6%, 각 그 다음날부터 갚는 날까지는 소송촉진 등에 관한 특례법에서 정한 연 20%의 각 비율에 의한 지연손해금을 각 지급할 의무가 있으므로, 원고들의 이 사건 청구는 위 각 인정범위 내에서 이유 있어 이를 각 인용하고, 원고들의 나머지 청구는 이유 없어 이를 모두 기각할 것인바, 제1심 판결은 이와 결론을 일부 달리하여 부당하므로, 원고들의 항소와 피고의 항소를 각 일부 받아들여(다만, 피고의 항소는 제1심 인용금액 중 지연손해금 부분에 한하여 일부 받아들인다) 제1심을 주문과 같이 변경한다.

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Judges Yellow-Hahn (Presiding Judge) Kim Dong-dong