Plaintiff (Non-party to the judgment of the Supreme Court) (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

old U.S. Air Transportation Co., Ltd. (Law Firm Gyeongbuk, Attorneys White-gu et al., Counsel for defendant-appellant)

May 18, 2012

Daegu District Court Decision 2011Gau256 decided December 22, 2011

1. Of the judgment of the court of first instance, the part against the defendant in excess of the next order for payment is revoked, and the plaintiff's claim corresponding to the revocation portion is dismissed.

The defendant shall pay to the plaintiff 7,481,802 won with 20% interest per annum from December 9, 2010 to the day of full payment.

2. The plaintiff's appeal and the defendant's remaining appeal are dismissed, respectively.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 13,463,291 won with 5% interest per annum from November 25, 2010 to December 8, 2010, and 20% interest per annum from December 9, 2010 to the day of full payment.

2. Purport of appeal

A. The plaintiff

The judgment of the first instance is modified as follows. The defendant shall pay to the plaintiff 13,463,291 won and 20% interest per annum from December 9, 2010 to the date of full payment.

B. Defendant

The part of the judgment of the court of first instance against the defendant shall be revoked. The plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Facts of recognition;

The following facts are not in dispute between the parties, or may be recognized by comprehensively taking into account the respective descriptions of Gap evidence 1 to 5, Eul evidence 13 to 16 (including paper numbers), and the whole purport of pleadings:

A. On October 24, 1998, the Plaintiff joined the Defendant company (hereinafter “Defendant company”). According to the wage agreement that was applied at the time of the Plaintiff’s retirement (i.e., May 1, 2004), the amount of wages of the taxi engineer belonging to the Defendant company is as follows; the amount of KRW 4,000 where the number of years of continuous service exceeds two years, and the amount of KRW 3,000 per year of continuous service exceeds two years; and the amount of KRW 240,000 per year of continuous service shall be paid as bonus, and the amount of KRW 30,000 per year of continuous service shall be paid as bonus, and the amount of KRW 30,000 per year of continuous service shall be paid as bonus. Moreover, at the time of the Plaintiff’s retirement, the transportation income that the taxi engineer should pay to the Defendant company is KRW 78,00 per day.

The wage details of the unit (won) wage in the main sentence 42,90 104 8 hours in the calculation of wage per 13 * 14,356 8 hours in the weekly holiday pay 13 * 4.35 hours in the weekly holiday pay 48,269 6 hours in the 117 * 13 days in the 150 * 21,450 52 hours in the 21,450 * 13 days in the 200 n 3,300 hours in the monthly holiday pay 8 hours.

B. According to the revision of the Minimum Wage Act (Act No. 8818) on December 27, 2007, Article 6(5) provides that the scope of wages included in the minimum wage of ordinary taxi drivers shall be “wages prescribed by Presidential Decree other than the wages calculated on the basis of output,” and thus, a regular taxi transport business entity shall pay more than the minimum wage to regular taxi drivers except excess taxi earnings. From July 1, 2010 to the Si unit including the Gu and Si, the above revised Act was enforced. Upon the enforcement of the revised Minimum Wage Act, the fixed wage, average wage, and retirement allowances for employees engaged in taxi drivers were significantly increased compared to the previous revision.

C. The Plaintiff worked for 13 days in August 2010, 2010, 12 days in September 2010, 2010, 13 days in October 2010, and 9 days in November 2010.

D. On November 24, 2010, the Plaintiff retired and worked for 4,414 days from his/her employment to his/her retirement. Accordingly, applying the amended Minimum Wage Act (Grade 4,110), if the Plaintiff’s retirement allowance is calculated based on the average wage for three months before his/her retirement, it is as follows:

3. Retirement allowances (from November 24, 2010 to 24) calculated pursuant to the Minimum Wage Act; 2.38 hours per annum (from 203.34) x 108 hours per annum x 40.34 hours per annum x 2.08 hours per annum x 107, 271 x 410 x 410 x 43,80 x 480 hours per annum x 36,90 x 36,90 x 110 x 40.4 hours per annum 40; 36.4 hours per annum x 205 hours per annum 63,000 x 34,00 (from October 1 to 31, 2010) x 】 40 x x 404 hours per week x x 1040 x x 1304 hours per annum x 14,28413

E. On November 24, 2010, the Defendant Company calculated a retirement allowance based on the wage before the above Minimum Wage Act and paid KRW 2,146,041, which deducted the remaining remaining amount of health insurance premium from KRW 84,728,000, which was calculated as a retirement allowance to the Plaintiff on November 24, 2010.

F. Following the enforcement of the amended Minimum Wage Act, the Defendant Company and the Gyeongsung branch headquarters of the Gyeongsung branch headquarters of the Korea taxi industry trade union concluded a deposit agreement with the Plaintiff upon agreement on February 27, 2012, which was subsequent to the Plaintiff’s retirement, that the Plaintiff was continuously engaging in collective bargaining on wage and transportation income, but did not reach an agreement.

According to the wage agreement above, a taxi engineer's 3 hours a day, 13 days a day, and 338,000 won a day, wage is 330,000 won a day, transportation income is 122,000 won a day, and the above wage agreement is effective from December 1, 201, but it is applied retroactively to wages and retirement pay from July 1, 201, and it is decided to settle the retirement pay to the defendant company after paying transportation income from July 1, 201 to November 30, 201.

G. If the plaintiff's retirement allowance is calculated by the above agreement, the following table is as follows:

1. From November 1 to November 24, 2010, 2010.1 to November 24, 2010. 8.25 to August 25, 2010.8- August 31, 2010. 127,606 basic pay 127,606.320,141 42,536,7204,430,430,430 night allowance + 707,430,786,3080,307,307,307,470,307,486,307,46,307,307,405,307,307,406,307,307,406,57,307,306,306,307,307,406,407,307,307,407,5,2007,36,36,2007,

Note 1) 3 days (13 days*7/31)

2. The parties' assertion

As the Plaintiff retired after the enforcement of the amended Minimum Wage Act, 15,694,060 won when calculating retirement allowances for the immediately preceding three months based on the amount of 4,10 won, the Defendant Company shall pay 13,463,291 won (15,694,060 won-2,146,041 won-2,146,041 - 84,728 won) to the Plaintiff.

In this regard, the defendant company paid the retirement allowance calculated on the basis of the former wage to the plaintiff, and even if the plaintiff calculates the retirement allowance according to the new wage agreement for domestic affairs, the defendant company should pay only 2,336,154 won to the plaintiff (2,146,923- already paid 2,146,041- remaining amount of health insurance settlement 84,728 won to the plaintiff).

3. Determination

A. According to the above facts, barring any special circumstance, the Defendant Company is obligated to pay the retirement pay and damages for delay calculated by applying the Minimum Wage Act amended to the Plaintiff.

B. The defendant company asserts that the amount of the increased amount of the transportation revenue that the defendant company should pay should be deducted. However, since the above wage agreement entered into after the plaintiff's retirement is invalid for the plaintiff (see Supreme Court Decision 2000Da18127, May 31, 2002, etc.), the above assertion by the defendant company is without merit.

C. However, even if the average wage was calculated in accordance with the principle stipulated under the Labor Standards Act and the Enforcement Decree of the Labor Standards Act, there was a change in the amount of wage due to the special and unexpected circumstances for a certain period of time that the employee retires, and thus, in exceptional cases where the average wage calculated as above is deemed considerably less or more than ordinary cases when comprehensively assessing all the circumstances, including the entire period of work, the period during which the amount of the employee’s wage changed, the period during which the amount of the wage changed, and the degree of change in the amount of wage, etc., it is not permissible in light of the spirit of the Labor Standards Act in which the employee intends to calculate the amount of retirement allowance based on such exceptional circumstances. Thus, the calculation of the amount of retirement allowance based on such exceptional case is not permissible in light of the spirit of the Labor Standards Act in which the employee intends to calculate the amount of retirement allowance based on the ordinary living wage (see Supreme Court Decision 200

D. In full view of the above recognized facts, Gap evidence Nos. 6, 8, 11, Eul evidence Nos. 7, 14, and 17 (including paper numbers) and the overall purport of the pleadings, the following circumstances are revealed.

① The Plaintiff’s retirement allowance is KRW 2,230,769 when calculated based on the former Minimum Wage Act before the enforcement of the amended Minimum Wage Act; KRW 14,942,417 when calculated by applying the minimum wage after the enforcement of the amended Minimum Wage Act; and KRW 4,386,875 according to the wage standard under the new wage agreement. In determining the amount of retirement allowance based on the former wage standard before the enforcement of the amended Minimum Wage Act, the amount of retirement allowance calculated by applying the minimum wage after the enforcement of the amended Minimum Wage Act is KRW 6.69 times, and KRW 1.97 times, the amount of retirement allowance calculated by applying the amended Minimum Wage Act was approximately KRW 3.4 times, based on the new wage standard under the new wage agreement. From 2010 to 2012, the amount of retirement allowance applied the minimum wage after the enforcement of the amended Minimum Wage Act was rapidly changed due to the date of retirement of the Defendant taxi engineer.

② On or before July 1, 2010, the amended Minimum Wage Act enforced, there is no dispute between the parties concerned that the amount of transportation earnings the Plaintiff paid to the Defendant Company is equal. Meanwhile, under the wage agreement dated February 27, 2012, the transportation income the Defendant Company would pay to taxi drivers increased from the existing KRW 78,000 to KRW 122,00, based on the increase in wages and retirement allowances that the Defendant Company would pay to taxi drivers.

In the event that the Plaintiff got close to the month, the transport income paid to the Defendant Company is KRW 1,014,00 (in the calculation of KRW 78,000, KRW 13,800, KRW 800, KRW 1,040,000). While the Plaintiff did not pay the increased portion of the transport income, the Plaintiff’s benefits applying the minimum wage under the Minimum Wage Act amended in the last month as of October 2010 are KRW 1,302,058, except for bonuses. As such, in the calculation of the retirement pay, it is unreasonable to result in the same as the Plaintiff received the wage higher than the amount paid to the Defendant Company.

③ Pursuant to Article 6(5) of the amended Minimum Wage Act, the scope of wages included in the minimum wage of taxi drivers in the ordinary taxi transport business was determined as “wages prescribed by Presidential Decree other than the wages calculated on the basis of output.” A general taxi transport business entity paid a minimum wage to taxi drivers, with the exception of excess taxi earnings. This purpose is to ensure a stable living of taxi drivers by ensuring that taxi drivers can receive wages exceeding the minimum wage amount even if the amount of fixed wage out of the wages paid to taxi drivers is low. However, the purport of the amended Minimum Wage Act is to reasonably improve the system of poor working conditions by ensuring that taxi drivers are able to receive wages exceeding the minimum wage amount. However, the same result is that the same as the Plaintiff’s retirement date simply differs from the amount of the retirement allowance paid to taxi drivers depending on the date of their retirement, and that the same result is also inconsistent with the purport of the amended Minimum Wage Act.

④ The Plaintiff et al. filed a criminal complaint against the representative director of the Defendant Company on the grounds that the Defendant Company did not pay retirement allowances calculated on the basis of the average wage calculated by applying the minimum wage to the Plaintiff, etc. after the enforcement of the Minimum Wage Act. In the above criminal case, the labor inspector may be deemed as KRW 89,347.5 of the monthly minimum wage calculated on the basis of the wage calculation working hours under the previous wage agreement of the Defendant Company, but the labor inspector also has expressed his opinion that the monthly minimum wage calculated on the basis of the wage calculation working hours of the Defendant Company exceeded the scope of the Defendant Company’s ability to cope with the transport earnings. The prosecutor of the Daegu District Prosecutors’ Office Kimcheon-si Office issued a disposition against the Defendant Company’s representative director on the ground that no new wage agreement was concluded upon the enforcement of the amended Minimum Wage Act

E. In light of the aforementioned various circumstances, the Plaintiff’s average wage calculated by applying the minimum wage after the enforcement of the amended Minimum Wage Act shall be deemed exceptional cases where the Plaintiff’s average wage, which is determined based on the minimum wage under the amended Minimum Wage Act, is significantly less or more unreasonable in light of the good faith principle or the principle of equity, comprehensively taking into account all the circumstances, including the length of the change in the amount of the wage, the degree of change in the amount of the wage, etc. Furthermore, even if not, it is reasonable to impose the Defendant Company a duty to pay the entire amount of retirement allowance calculated based on the minimum wage under the amended Minimum Wage Act, based on the following circumstances: (a) other circumstances revealed in the argument process of the instant case, i.e., the failure to enter into a new wage agreement with the Defendant Company until the enforcement of the amended Minimum Wage Act, can entirely be deemed as the Defendant Company’s liability; and (b) the reduction of the amount of retirement allowance to the extent that the Plaintiff would be paid.

Accordingly, considering the following circumstances, the Plaintiff’s total period of work and the number of wages during that period, the purpose of legislation of the Minimum Wage Act, the amount of minimum wage and the degree of changes in the amount of wages therefrom, and the amount of transportation income paid by the Plaintiff to the Defendant Company, the amount of the retirement allowance to be received by the Plaintiff is determined as 9,712,571 won ( KRW 14,942,417 x 65%) (this is the same amount as the retirement allowance if the monthly average wage as of 30 days is about 803,146 won, and the monthly average wage is the same as the monthly average wage if the Plaintiff was paid to the Defendant Company, and the monthly average wage is equal to about 1,014,000 won for the month when the Plaintiff was paid to the Defendant Company).

F. Therefore, the Defendant is obligated to pay to the Plaintiff KRW 7,481,802 ( KRW 9,712,571- already paid KRW 2,146,041- Balance Settlement of Health Insurance Premiums 84,728) and damages for delay at the rate of 20% per annum prescribed by the Labor Standards Act from December 9, 2010 to the date of full payment, which is the day following the expiration of the 14-day period from the retirement date of the Plaintiff’s retirement date.

4. Conclusion

Therefore, the part against the defendant ordering payment in excess of the above money in the judgment of the court of first instance is unfair, so this part is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The plaintiff's appeal and the defendant's remaining appeal are dismissed as it is without merit. It is so decided as per

Judges Choi Young-young (Presiding Judge)

Note 1) The wage calculated by working for 31 days, 7/31 days in total, compared to the amount equivalent to 7/31 of the wage for the last month is greater, so that it is accordingly.