[1] The case holding that the "occupational accident" cannot be viewed as an "occupational accident" in case where the director-general of the company's board of directors suffered an injury after digging away from the drinking stairs while attending a meeting of the company's board of directors and a meeting of the company, who took part in the atmosphere after the formal meeting of the company finished and takes part in the atmosphere and takes part in the drinking house.

[2] The meaning of "in a case where it is impossible to calculate the average wage" under Article 4 of the Enforcement Decree of the former Labor Standards Act, and the method of calculating the average wage in a case where the total amount of wages for three months, which is the basis for calculating the average wage, is significantly less or more than that of

[3] The case reversing the judgment of the court below which calculated the average wage by other method without examining whether the average wage calculated under the Labor Standards Act at the time of retirement and its Enforcement Decree was significantly less than ordinary wage due to special reasons where a worker was retired from office 10 days after the worker was temporarily retired from office with the employer's consent due to non-business injury and was not reinstated after the expiration of the period of temporary retirement under the Rules of Employment

[1] The case holding that the "occupational accident" cannot be deemed as a "occupational accident" in the case where the director-general of the company's board of directors suffered an injury, in the case where he/she was present at the mountain conference and the ceremony held by the company, and on the atmosphere after the official ceremony finished, he/she gets a part of his/her employees and drinking house to move his/her place to drinking house on his/her private ground.

[2] Article 4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15682 of Feb. 24, 1998) provides that where it is impossible to calculate the average wage pursuant to the Labor Standards Act and the Enforcement Decree thereof, it shall be determined by the Minister of Labor. The phrase that it is impossible to calculate the average wage here includes not only the case where it is technically impossible to calculate the average wage, but also the case where it is significantly inappropriate to calculate the average wage pursuant to the relevant provisions of the Labor Standards Act. Thus, the "total amount of wages paid to workers for the three-month period prior to the date on which the cause occurred" cannot be used as the basis of the average wage if it is considerably less or more due to special reasons. Since the Minister of Labor has not provided the standard or method thereof, the average wage should be calculated by reflecting the ordinary living wage of workers in light of the basic principle of the average wage and the purport of the retirement allowance system.

[3] The case reversing the judgment of the court below which held that the average wage should be calculated on the basis of the wage received by other workers who worked in the same or near class for three months prior to the date of retirement on the ground that it was unlawful for the court below to have determined that the average wage should be calculated on the basis of the wage received by the other workers who worked in the same or near class for three months prior to the date of retirement, without examining whether the average wage calculated under the Labor Standards Act and its Enforcement Decree as at the time of retirement was significantly less than ordinary wage due to special reasons, in case where the worker was retired at 10 days after retirement with the employer's consent from an injury other than work and was not reinstated

[1] Article 80 of the former Labor Standards Act (repealed by Act No. 5305 of Mar. 13, 1997) (see Article 83 of the current Act) / [2] Article 19 of the former Labor Standards Act (amended by Act No. 5473 of Dec. 24, 1997); Article 4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15682 of Feb. 24, 1998) / [3] Article 19 of the former Labor Standards Act (amended by Act No. 5473 of Dec. 24, 1997); Articles 2 (1) 8 and 4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15682 of Feb. 24, 1998)

[1] Supreme Court Decision 94Da60509 delivered on May 26, 1995 (Gong1995Ha, 2258), Supreme Court Decision 2000Du10540 Delivered on May 8, 2001 / [2] Supreme Court Decision 97Da18936 delivered on January 20, 1998 (Gong198Sang, 561) Supreme Court Decision 98Da49357 Delivered on November 12, 199 (Gong199Ha, 2480)

Plaintiff 1

Plaintiff 2 and two others (Attorney Choi Han-ki, Counsel for the plaintiff-appellant)

Korea-U.S. General Finance Corporation (Law Firm Square, Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na20744 delivered on March 7, 2000

The part of the lower judgment against the Defendant is reversed and remanded to the Seoul High Court. All appeals by the Plaintiffs are dismissed. The costs of appeal by the lower court are assessed against the Plaintiffs.

The grounds of appeal are examined.

1. Judgment on the plaintiffs' grounds of appeal

In full view of the adopted evidence, the court below rejected the plaintiffs 1 as follows: (a) as the chief of the defendant's director treatment department, after attending the 15 January 15, 1995 North Korean Industrial Complex held by the defendant; (b) after completing the 15:00 official meeting, the plaintiff 1 was present at the cafeteria or a restaurant; (c) after the completion of the 15:00 official meeting, some officers and employees remaining at the cafeteria and continuously drink the drinking, and the atmosphere was formed; (d) the 15th employee at around 17:0 and the 15th employee at the place in the 21:0 after the 15th day after the 21:0 day after the 10th day after the 10th day after the 21:0 day after the 1st day after the 10th day after the 1st day after the 20th day after the 1st day after the 1st day after the 20th day after the 1st day after the 200th day after the 1st day after the 3th day after the 1st day after the 20th day.

In light of the records and relevant legal principles, the fact-finding and judgment of the court below is just, and there is no error of misconception of facts or misapprehension of legal principles as otherwise alleged in the

On the other hand, the plaintiff 1 appealed against the part of the claim for retirement allowance, but there is no indication in the appellate brief on it.

2. Judgment on the Defendant’s grounds of appeal

The lower court determined that the calculation of the retirement allowance for the said Plaintiff should be based on the wages received by other employees, who worked in the same or nearest class with the said Plaintiff, for three months prior to the date of the said accident, on the grounds that Plaintiff 1 was retired from the said accident while taking a leave of absence, and thus failed to receive normal wages for three months prior to the said retirement.

However, this decision of the court below is not acceptable.

Article 19 of the former Labor Standards Act (amended by Act No. 5309 of Mar. 13, 1997, amended by Act No. 5473 of Dec. 24, 1997), which was in force as of March 29, 197, provides that "average wages" means the amount calculated by dividing the total amount of wages paid to the worker for three months before the date on which the cause for calculation thereof arises by the total number of days during which the period was three months before the date on which the cause thereof arises, and Article 2 (1) 8 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of Mar. 27, 1997, which was enacted by Presidential Decree No. 15682 of Feb. 24, 1998) provides that "the average wages paid during the period of suspension with the employer's injury or disease shall be deducted from the total amount of wages paid during the period of retirement and wages paid during the period from 197.197.

On the other hand, Article 4 of the former Enforcement Decree of the Labor Standards Act provides that where it is impossible to calculate the average wage under the Labor Standards Act and the Enforcement Decree thereof, it shall be determined by the Minister of Labor. The phrase that it is impossible to calculate the average wage here includes not only the case where it is technically impossible, but also the case where it is extremely inappropriate to calculate the average wage under the relevant provisions of the Labor Standards Act. Thus, the "total amount of wages paid to workers for the three-month period prior to the date on which the cause occurs" cannot be used as the basis of the calculation of the average wage if it is significantly less or more than the ordinary case due to special reasons. Since the Minister of Labor has not yet determined the standard or method thereof, the court should calculate the average wage by a way that reflects the ordinary living wage of workers in light of the basic principles of the average wage and the purport of the retirement allowance system (see Supreme Court Decision 98Da49357, Nov. 23, 199).

Therefore, in this case where the defendant calculated the average wage under the Labor Standards Act and the Enforcement Decree thereof at the time of the plaintiff 1's retirement and paid the retirement allowance, the court below may calculate the average wage by other methods not prescribed in the Ordinance of the Labor Standards Act, only when it is recognized that the average wage calculated by the defendant was significantly less than the ordinary wage due to special reasons. In this case, the court below rejected the method of calculating the average wage under the former Act and the Enforcement Decree thereof and calculated the average wage by other methods without examining this point is erroneous in the misapprehension of legal principles as to the calculation of the average wage, and it has affected the conclusion

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below, and all of the plaintiffs' appeals are dismissed. The costs of appeal against the dismissed judgment are assessed against the plaintiffs, who are the losing party. It is so decided as per Disposition

Justices Son Ji-yol (Presiding Justice)