[1] Requirements for the payment of money to a worker to be included in the total amount of wages, which is the basis for calculating average wages

[2] In a case where the "total amount of wages paid to the worker" during the 3-month period prior to the date on which the cause occurred is clearly less or more than that of ordinary wages due to special reasons, whether it can be used as the basis for the calculation of average wages as it is (negative)

[3] In a case where a provision that a retirement allowance shall be paid in full for the pertinent month even if he retires in the middle of a month under the rules of employment, whether the total amount of remuneration for the pertinent month can be included in the calculation of the average wage which serves as the basis of calculation

[1] If money and valuables paid to a worker are to be included in the total amount of wages as the basis for calculating average wages, regardless of its name, and even if the payment of money and valuables was made according to the collective agreement, employment rules, employment contract, employment contract, etc., or employer’s policies, the occurrence of the obligation to pay money and valuables can be deemed as directly related to the provision of labor or closely related thereto, i.e., the payment of money and valuables to a worker as the subject of

[2] The basic principle of the average wage is to accurately calculate the ordinary living wage of a worker. If the "total amount of wages paid to the worker" is significantly less or more than that of ordinary wage for the three months prior to the date on which the cause occurred, the average wage cannot be used as the basis of the calculation of the average wage. The purpose of the retirement allowance system based on which the average wage is calculated is to guarantee the ordinary life of the worker in accordance with class, salary class, etc. as before. Thus, it is more or less than that of ordinary wage due to special and incidental circumstances is against the basic purpose of the system.

[3] The provisions of the rules of employment stipulating that the full monthly remuneration shall be paid even if the retirement is made during the month, shall not be deemed to include policy and benefits for the calculation of the wages for the retired worker, and it shall not be deemed that the retirement worker should pay the full monthly wage increase regardless of the actual number of working days. Thus, it shall not be deemed that the total monthly remuneration for the relevant month should be calculated by including it in the wages paid during the last three months from the date immediately preceding the retirement day, thereby calculating the average wage and calculating the retirement allowance based thereon.

[1] Articles 19 (see current Article 19), 28 (1) (see current Article 34) and 28 (2) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Articles 19 (see current Article 19), 28 (1) (see current Article 34) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [3] Articles 19 (see current Article 19) and 28 (1) (see current Article 34) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

[1] Supreme Court Decision 94Da5934 delivered on May 12, 1995 (Gong1995Sang, 211), Supreme Court Decision 95Da19256 delivered on May 14, 1996 (Gong1996Ha, 1837), Supreme Court Decision 96Nu15084 delivered on May 28, 1997 (Gong1997Ha, 1893), Supreme Court Decision 97Da56235 delivered on February 9, 199 (Gong199Sang, 451 delivered on April 9, 199) 97, Supreme Court Decision 90Da4683 delivered on November 9, 190 (Gong199, 451 delivered on April 26, 199) 97.

Plaintiff (Attorney Lee Won-soo et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Kim Dong-hwan, Counsel for defendant-appellee)

Seoul High Court Decision 96Na7566 delivered on December 12, 1996

The part of the lower judgment against the Defendant regarding retirement allowances shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that, based on the timely evidence, the plaintiff was employed by the police assigned for special guard on May 14, 1984 and retired from office as of May 11, 1995. Under the rules of employment, the defendant Corporation shall calculate the remuneration from the first day of the month to the last day of the month, and if the defendant corporation retires from office, the payment shall be made in full for the month, and the retirement allowance shall be calculated by multiplying the payment rate of retirement benefits by the monthly salary, and the monthly salary shall be calculated by multiplying the wages paid for the last three months from the immediately preceding day to the last three months. In general, if the plaintiff received the full amount of the monthly salary, even if retired in the middle of the month, the above salary shall not be deemed to have the nature of the remuneration paid for the month from the date of retirement to the last day of the month, and shall not be deemed to have the nature of the wage paid for the last three months from the date of retirement to the last day of the month (see Supreme Court Decision 2009Da53999, May 297.

2. However, if money and valuables to be paid to workers can be included in the total amount of wages which serves as the basis for the calculation of average wages, regardless of its name, and even if the payment of such money and valuables was made in accordance with the collective agreement, employment rules, employment contracts, etc., or employer's policies, it should be deemed that the occurrence of payment obligation is directly related to the provision of labor or is closely related to such provision of labor, i.e., payment of retirement benefits as eligible for labor (see, e., Supreme Court Decisions 94Da55934, May 12, 1995; 95Da19256, May 14, 1996; 97Da19797, May 197, which is the basic principle of calculating the average wages, and thus, it cannot be deemed that the amount of wages paid to the workers is significantly lower than the average wages paid to them for three months prior to the date on which such cause occurred.

In addition, the rules of employment stipulate the rules on working conditions, such as service regulations and wages of workers to be applied uniformly to the entire workers of the relevant business, and the common intent of workers, such as employers and workers, shall be interpreted as one of the general interpretation criteria. However, as long as the rules of employment stipulate that the full monthly remuneration at the time of retirement should be paid, regardless of the date of retirement, the average wage shall be calculated by including the full monthly remuneration for the relevant month in the wages paid in the last three months from the date immediately preceding the date of retirement, and the retirement allowance shall be calculated based on this, even if the workers who worked for the same month after receiving the same monthly salary in the same company retire in the same month, there is a serious imbalance in the calculation of the retirement allowance, even if they retire in the same month, even if they were to retire in the same month, and there is a phenomenon that the number of days worked every month can be paid as soon as they reach the retirement month, which is extremely unreasonable and inconsistent with the common intention of the workers, which also goes against the rules of employment.

In light of the above basic principles of average wages, the purpose of the retirement allowance system, and the general interpretation criteria of the rules of employment, etc., the provisions of the rules of employment that provide that the full amount of remuneration shall be paid even if a retired employee retires in the middle of the month shall be deemed to include policy and benefits in the calculation of wages for the retired employee, and it shall not be deemed that the retirement employee shall not be paid in full by raising his/her wages regardless of the actual number of working days.

Therefore, the Supreme Court Decision 92Da24509 Decided May 27, 1993, which has taken a different view, has decided to revise it.

In the end, the first instance court's other opinion affected the conclusion of the judgment by misunderstanding the legal principles as to average wages and by misunderstanding the interpretation of the retirement benefit provision of Defendant Corporation. Therefore, the appeal pointing this out is with merit.

3. Therefore, the part of the judgment of the court below against the defendant regarding retirement allowances shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

1. The case is remanded to the Supreme Court for further proceedings consistent with this Opinion. The case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.