[1] In a case where the rules of employment were modified disadvantageously without the consent of the employee, whether the previous rules of employment should be applied to the employee employed after the revision (negative)

[2] The method of calculating retirement allowances in a case where the retirement allowance provision during the continuous service period is amended to its validity

[3] The validity of the provision of retirement allowance in favor of workers under Article 28(1) of the Labor Standards Act (effective)

[1] In principle, since an employer has the authority to prepare and revise the rules of employment, an employer may prepare and revise the rules of employment according to his/her intent, and even if an employer revised the rules of employment without consent from the worker in a collective decision-making manner despite the disadvantage to the worker, since the revision of the rules of employment is effective, and since the rules of employment with the current legal effect is a revised rules of employment, the revised rules of employment is applied to workers who have the employment relationship after the revision, but only the previous rules of employment are applied to existing workers who

[2] The specific right to claim a retirement allowance arises from the requirement that the retirement allowance is the retirement after the end of the continuous service period. Thus, in a case where the retirement allowance rules to be applied in the middle of the continuous service period are effectively revised, the provisions of the effective retirement allowance provisions at the time of the retirement should be applied in calculating the total service period. Thus, as the previous retirement allowance system is prohibited from being applied from April 1, 1981 due to the establishment and enforcement of Article 28(2) of the Labor Standards Act, even in a case where the retirement allowance system applied in the pertinent business as the retirement allowance system in the pertinent business, it is necessary to calculate the retirement allowance by applying the provisions of the retirement allowance applicable

[3] Article 28(1) of the Labor Standards Act provides the lowest amount of retirement allowances that an employer shall pay to a retired employee, and if there is a provision of retirement allowances under the rules of employment or collective agreement which is more favorable to the employee, the amount of retirement allowances must be calculated accordingly.

[1] Article 95 of the Labor Standards Act / [2] Article 28(2) of the Labor Standards Act, Article 28(1) and (2) of the Addenda ( December 31, 1980) / [3] Article 28(1) of the Labor Standards Act

[1] Supreme Court en banc Decision 91Da45165 delivered on December 22, 1992 (Gong1993Sang, 546), Supreme Court Decision 93Da17898 delivered on August 24, 1993 (Gong1993Ha, 2606), Supreme Court Decision 93Da1493 delivered on May 24, 1994 (Gong1994Ha, 178), Supreme Court Decision 94Da25329 delivered on October 14, 1994 (Gong1994Ha, 2986), Supreme Court Decision 94Da30638 delivered on April 26, 1996 (Gong196, 1964) 97Da297989 delivered on May 16, 197 (Gong196, 1964)

Plaintiff 1 and three others (Attorneys Lee Won-soo et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Lee Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na27402 delivered on December 5, 1995

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Since an employer has the authority to prepare and revise the rules of employment as a matter of principle, an employer may prepare and revise the rules of employment according to his/her intent, and even if an employer made an amendment without obtaining consent from the employees in a collective decision-making manner despite the disadvantage of the employee, the amendments to the rules of employment are effective and the rules of employment with the current legal effect are the amended rules of employment. Therefore, the amended rules of employment apply to employees who have labor relations after the amendments, but the previous rules of employment only apply to existing employees who infringe upon the vested interests (see Supreme Court en banc Decision 91Da45165 delivered on December 22, 192).

In addition, the specific claim for a retirement allowance occurs under the condition that the continuous service period is terminated (see Supreme Court Decision 92Da17754 delivered on September 14, 1992). In case where the retirement allowance provision applicable to the interim service period is valid, in calculating a retirement allowance, it is necessary to apply the provisions of a retirement allowance valid at the time of the entire service period to the entire service period, and it is not to apply the provisions of a retirement allowance prior to the change of the previous service period after dividing the period before and after the change of the retirement allowance provision. Thus, since the previous retirement allowance system is prohibited from the previous retirement allowance system from April 1, 1981 under Article 28(2) of the Labor Standards Act, Article 1 and Article 28(2) of the Addenda of the Labor Standards Act, newly established by Act No. 3349 delivered on December 31, 190, and even in case where the retirement allowance system applicable to the largest worker within the pertinent business applies as the retirement allowance system within the entire service period, it is necessary to calculate the retirement allowance.

According to the records on this case, the plaintiff 1 was employed as an employee in extraordinary civil service on March 11, 1978, and retired on March 31, 1993. The non-party, who is the deceased of the plaintiff 2, 3, and 4, was employed as an employee in extraordinary civil service on April 4, 1980 and retired on February 23, 1993 after the change of his position as an employee in general service on February 24, 1993. The defendant Corporation shall establish the rules on the commission and temporary high-level retirement allowance for one year from the date of the plaintiff and the deceased non-party's membership in general service, and shall establish the rules on retirement allowance for 14 months from the date of the above revision (the previous rules on retirement allowance) to the 19-month average wage rate for 10 months from the date of the previous revision, and the new rules on retirement allowance for 19 months from the date of the previous revision to the 19-month average wage rate for 10 months.

The facts are as follows: (a) with respect to employees in general service of Defendant Corporation at the time of April 1, 1981, the retirement allowance rules amended on January 1, 1981 are legally effective as a result of the revision of the rules of employment; and (b) even if the revised rules of January 1, 1981 were not applicable to employees in general service who were employed before January 1, 1981, the conclusion does not vary; (c) as such, Article 28(2) of the Labor Standards Act (amended by Act No. 3349, Dec. 31, 1980) was enforced on April 1, 1981, the retirement allowance rules amended on January 1, 1981, which applied to employees in general service as well as those that applied to employees in general service.

Therefore, the retirement allowance system should be applied to the calculation of the retirement allowance of the deceased non-party, who was employed as a public official in extraordinary service on March 11, 1978 and was employed as a public official on April 4, 1980 after the prohibition of the retirement allowance system, while the retirement allowance system is prohibited. In calculating the retirement allowance of the deceased non-party, who was employed as a public official in general service due to a change in the position of the public official in general service, the monthly salary and retirement allowance payment rate under the revised provisions of January 1, 1981, which are the retirement allowance system for the employees in general service who are the largest number of workers

Therefore, the court below erred by misapprehending the legal principles as to Article 28 (2) of the Labor Standards Act and Article 1 and Article 28 (2) of the Addenda of the Labor Standards Act, which was newly established by Act No. 3349 on December 31, 1980, with respect to the period of full-time service of the plaintiff 1 and the deceased non-party. Thus, the defendant's appeal pointing this out is with merit.

2. Plaintiff’s ground of appeal

Article 28(1) of the Labor Standards Act provides the lowest amount of retirement allowance to be paid to the retired employee, so if there is a provision of retirement allowance under the rules of employment or collective agreement which is more favorable to the above provision, it should be calculated accordingly (see Supreme Court Decision 93Da46841 delivered on May 24, 1994).

The revised retirement allowance on January 1, 1981, applicable to the calculation of the retirement allowance of Plaintiffs 1 and the deceased Nonparty, which is the basis of the calculation of the retirement allowance, refers to the total amount of the basic salary paid in the last three months from the date immediately preceding the retirement day and the allowance paid in common each month (construction allowance, overtime work allowance, holiday work allowance, monthly leave allowance), and the annual leave allowance and bonus allowance paid in the immediately preceding one year, three equal amounts. Thus, if the total amount of the retirement allowance of Plaintiffs 1 and the deceased Nonparty calculated in accordance with the provisions of the retirement allowance of the Defendant Corporation exceeds the amount calculated in accordance with Article 28(1) of the Labor Standards Act, the annual leave allowance paid in the immediately preceding one year to Plaintiffs 1 and the deceased Nonparty should be included in the calculation of the pertinent retirement allowance of the Plaintiff 1 and the deceased Nonparty, regardless of whether part of the year was included in the three months preceding the date immediately preceding the retirement day.

Therefore, the judgment of the court below which judged otherwise is erroneous in the misunderstanding of legal principles as to the retirement allowance system, and the plaintiff's appeal pointing this out is with merit.

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 by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)