[1] The binding force of the judgment reversed and remanded

[2] The case reversing the judgment of the court below on the ground of a misapprehension of legal principles as to the binding force of the judgment of the remand after remanding the judgment of the court below, although the judgment of the remand was partially disadvantageous to the worker without the worker's consent by collective decision-making

[3] The case reversing the judgment of the court below which did not recognize the existence of an implied agreement between the labor and management that bonus, etc. is not included in the "average wage" which is the basis of calculation of retirement pay

[1] The court, which received the case from the court of final appeal, shall be bound by the court of final appeal to the extent that the factual and legal judgment rendered by the court of final appeal on the grounds of reversal is submitted new arguments or evidence during the trial process after remand and that changes in facts constituting the basis of continuous judgment occur, unless the facts constituting the basis of continuous judgment occur.

[2] The case reversing the judgment of the court below on the ground of the misapprehension of legal principles as to the binding force of the judgment of the remanded case, after remanding the judgment of the court below to be entirely null and void, although the judgment of the remanded case partially unfavorable to the worker without the worker'

[3] The case reversing the judgment of the court below which did not recognize the existence of an implied agreement between the labor and management that is not included in the "average wage" which is the basis of calculation of retirement allowances, on the ground that it violated the law of evidence collection and incomplete hearing

[1] Article 406 (2) of the Civil Procedure Act / [2] Articles 28 and 95 of the Labor Standards Act, Article 137 of the Civil Act, Article 406 (2) of the Civil Procedure Act / [3] Article 28 of the Labor Standards Act, Articles 187 and 393 of the Civil Procedure Act

[1] Supreme Court Decision 91Da2113 decided Apr. 12, 1991 (Gong1991, 1376), Supreme Court Decision 92Da28556 decided Jun. 24, 1994 (Gong1995Sang, 603), Supreme Court Decision 91Da45165 decided Dec. 22, 1992 (Gong193Sang, 546), Supreme Court Decision 94Da25322 decided Oct. 14, 194 (Gong1994, 2986), Supreme Court Decision 91Da45165 decided Dec. 22, 1992 (Gong193Sang, 546), Supreme Court Decision 94Da25322 decided Oct. 14, 1994 (Gong1994, 2986), Supreme Court Decision 95Da38379 decided Apr. 15, 1997)

Seoul High Court Decision 2001Na14488 delivered on August 2, 2012

Song-gu and one other (Law Firm citizen General Law Office, Attorneys Yoon Jong-tae et al., Counsel for the plaintiff-appellant)

Co., Ltd. (Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 92Da28556 delivered on June 24, 1994

Daegu High Court Decision 94Na4098 delivered on September 21, 1995

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. We examine the grounds of appeal by the Plaintiffs (excluding Plaintiff Song-gu, and final jurisdiction).

According to the reasoning of the judgment below, even if the revised provision on retirement allowance of the defendant company was revised on January 1, 1981 to disadvantage the above workers, and the revised provision on retirement allowance for 15 years according to the above revised provision on retirement allowance cannot be objectively evaluated as favorable to workers because the revised provision on retirement allowance for 15 years was revised differently from the above revised provision on retirement allowance for the employees, but it is clear that the revised provision on retirement allowance for 15 years was invalid because the revised provision on retirement allowance was not applied to the employees. However, the revised provision on retirement allowance for 15 years was not applied to the employees' disadvantage because the revised provision on retirement allowance for 15 years was not applied to the employees, and the revised provision on retirement allowance was not applied to the employees' disadvantage because the revised provision on retirement allowance was not applied to the employees' disadvantage. Thus, it is reasonable to view that the revised provision on retirement allowance was not applied to the employees' disadvantage because the revised provision on retirement allowance for 15 years or more was not applied to the employees' disadvantage.

However, the court that received the case from the court of final appeal shall be bound by the determination of the period of service after remanding the case, unless there is a new argument or evidence regarding the period of service after remanding the case and there is a change in the factual basis of continuous determination (see, e.g., Supreme Court Decision 87Meu1396, Mar. 8, 198). The ground for reversal of the judgment remanded to the party members of this case is that the portion regarding the period of service up to 15 years of the revised retirement rules of this case is significantly lower than the initial retirement rules before the revised retirement rules. Thus, even if the scope of basic wages was wide, the change is so changed disadvantageous to workers, and thus, the change requires the consent of a group of workers subject to the previous provisions before the revised retirement rules, and thus, the revision of the provisions of this case is null and void unless there are special circumstances, since the revision of the provisions of this case was made without such consent, it cannot be viewed that the new provision regarding the period of service exceeding 15 years of the revised retirement rules of this case is more appropriate or invalid.

Nevertheless, it is difficult to view the amendment of the above retirement allowance provision as a separate act by dividing it into the act of setting the rate of payment of retirement allowances up to 15 years of continuous service and the act of setting the rate of payment of retirement allowances thereafter, and it is only one legal act based on a single intention and its contents can be divided into 15 years of continuous service. However, if a part of the legal act is null and void, the above amendment of retirement allowance is null and void in accordance with the legal principles under Article 137 of the Civil Act that the whole null and void, and the above amendment of retirement allowance should be made null and void. Furthermore, for the continuous service period exceeding 15 years, there is no provision under Article 28 of the Labor Standards Act concerning the retirement allowance provision before the amendment, and it is erroneous in the misapprehension of legal principles as to the binding force of the judgment of remand, which affected the conclusion of the judgment. The plaintiffs' appeal pointing this out has merit.

2. Determination on the grounds of appeal by Defendant’s attorney

A. The lower court, based on the average wage under the Labor Standards Act at the time of retirement, calculated the instant retirement allowance for the Plaintiffs on the ground that the amendment was null and void on January 1, 1981, and that there was no room for application of the provision on retirement allowance after the amendment to the Plaintiffs who were employed in the Defendant Company prior to the amendment, and only the provision on retirement allowance before the amendment was applicable. The Defendant Company’s retirement allowance provision and the provision on wages before the amendment were based on the average wage under the Labor Standards Act and the Enforcement Decree thereof.

B. The court below calculated the retirement allowance of this case against the plaintiffs on the basis of the average wage under the Labor Standards Act as at the time of retirement as at January 1, 1981, it seems that the court below made a determination based on the language and text of all the provisions under Article 4 (3) 1 of the Labor Standards Act (Article 4 (1) 1 of the Enforcement Rule of the Rules of Benefits) related to the retirement allowance of the defendant company prior to the amendment (Article 1-1, No. 13, No. 14 of the above Act), which provides that the retirement allowance shall be calculated by taking over the average wage in the number of payment days (Article 5 of the Regulations of Retirement Allowances), and the calculation method of average wage shall be in accordance with the Labor Standards Act and the Enforcement Decree of the above Act (Article

However, according to the records, prior to the amendment of the Labor Standards Act on January 1, 1981, part of the wages paid by the defendant company to its employees was not included in the calculation of the average wage under the above provision on retirement allowance. According to the above provision on the retirement allowance of the defendant company 1 to the effect that the new provision on the retirement allowance was established, and that the new provision on the retirement allowance of the defendant 2 should be revised to the effect that the new provision on the retirement allowance of the defendant 1 to the effect that the new provision on the retirement allowance of the defendant 4 was not included in the calculation of the retirement allowance under the above provision on the retirement allowance of the defendant 1 to the effect that the new provision on the retirement allowance of the defendant 1 to the effect that the new provision on the retirement allowance was revised to the effect that the new provision on the retirement allowance of the defendant 1 to the effect that the new provision on the retirement allowance of the defendant 2 would not be included in the calculation of the average wage under the Labor Standards Act on the ground that the new provision on the retirement allowance of the defendant 1 to the new provision on the Act.

If the evidence relationship is the same, it is reasonable to view that the bonus, etc. among the salary items paid by the defendant company to its employees before the revision of January 1, 1981, does not include the "average wage" as the basic wage for the calculation of retirement pay according to the rules on retirement pay of the defendant company, and that there has been an implied agreement between the labor and management.

Nevertheless, the court below's determination as above is just based on the purport that the defendant company established the retirement allowance provision for the wages which are the basis of the calculation of the previous retirement allowance under the provisions of the previous retirement allowance, the phrase of the previous retirement allowance provision without further detailed deliberation on the operational status of the retirement allowance provision, the attitude of employees corresponding thereto, the details and details of the change of the retirement allowance provision, etc., cannot be exempted from criticism that the court below committed unlawful acts that affected the conclusion of the judgment by failing to exhaust all necessary deliberations or misunderstanding facts in violation of the rules of evidence, and the defendant'

C. In addition, the defendant made clear that the new allowance is not included in the basic wage for the calculation of the retirement allowance when the new allowance was newly established after the amendment of the retirement allowance regulations on January 1, 1981 between the labor and management, and therefore, it cannot be used as the basis in calculating the retirement allowance for the plaintiffs based on the average wage under the revised retirement allowance regulations. However, if the new allowance is established, it is clear in the record that the concept of the basic wage under the retirement allowance regulations on the defendant company already adopted the concept of the retirement allowance regulations on the retirement allowance to the employees, and it is clearly stated that any of the wages paid to the employees is included in the basic wage. As such, even though it clearly stated that the new allowance is not the basis for the calculation of the retirement allowance after the amendment of the above provision on the retirement allowance regulations on the defendant's domestic affairs, it is difficult to view that such new allowance was excluded from the basic wage under the previous provision on the retirement allowance just due to such reasons, and even if examining the record, the defendant's argument in the ground of appeal was not acceptable.

3. 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 with the assent of all Justices who reviewed the appeal.

Justices Cho Chang-tae (Presiding Justice)