[1] Whether average wages under the rules on retirement allowances of a business place mean average wages under the Labor Standards Act, and the method of determining the scope of allowances included in average wages under the rules on retirement allowances

[2] The case holding that the average wage under the provisions of the retirement allowance is different from the average wage under the Labor Standards Act, and family allowances are not included in the average wage which is the basis for the calculation of the retirement allowance

[1] Whether the "average wage" stipulated in the retirement benefit provision and remuneration provision at a certain place of business is an average wage under the Labor Standards Act or is included in the "monthly allowance as a content of average wage" should be determined by the objective interpretation of the above provisions. However, in the interpretation of the above provisions, it should be determined in full view of various circumstances such as the payment practice of the pertinent place of business and the details and details of the amendment.

[2] The case holding that in case where the Korea National Housing Corporation calculated the retirement allowance under the provisions of the former retirement allowance regulations, including the retirement allowance regulations and the remuneration regulations, without the consent of the worker group, and the family allowances newly established and paid from the time of the amendment of the above retirement allowance regulations, are included in the average wage under the provisions of the former retirement allowance regulations, it is reasonable to interpret that the average wage under the provisions of the former retirement allowance before and after the amendment is different from the average wage under the Labor Standards Act in light of various circumstances, such as the contents, circumstances, and payment circumstances of the retirement allowance regulations before and after the amendment of the Korea National Housing Corporation, and that in applying the provisions of the former retirement allowance regulations, family allowances are not included in the average wage

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

[2] Supreme Court Decision 90Meu10312 Decided November 27, 1990 (Gong1991, 205) Supreme Court Decision 93Da26168 Decided July 11, 1995 (Gong1995Ha, 257), Supreme Court Decision 96Da23863 Decided October 25, 1996

Plaintiff 1 and six others (Attorney Postal Authority, Counsel for the plaintiff-appellant)

Korea National Housing Corporation (Attorney Kim Jong-su, Counsel for defendant-appellant)

Seoul High Court Decision 96Na46783 delivered on May 15, 1997

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

The defendant's attorney's grounds of appeal are examined.

(1) According to the reasoning of the judgment below, since the above provision on retirement benefits was amended in 197 through 197 as stated in the list of the employees employed at the Defendant’s Corporation, and the above provision on retirement benefits was amended in 193; the above provision on retirement benefits for employees employed at the same time as the above provision on retirement benefits was enacted on August 30, 1967, providing that “retirement benefits shall be paid under the conditions as prescribed by the Regulations on Retirement Benefits.” Article 4 of the separate provision on retirement benefits enacted upon delegation of the above provision provides that the amount of retirement benefits shall be calculated by multiplying the amount of the monthly average wages paid at the time of retirement by the payment rate of the monthly salary, and Article 3 provides that the amount of the monthly average wages paid at the time of retirement benefits shall be calculated by the same time as the monthly average wages paid at the time of retirement, and Article 15 of the above provision on retirement benefits paid at the time shall also be construed as the calculation of the monthly average wages paid at the time of retirement.

The issue of whether the "average wage" stipulated in the retirement benefit provision and remuneration provision before the revision of the defendant corporation is an average wage under the Labor Standards Act or is included in the "monthly allowance as a content of average wage" shall be determined by the objective interpretation of the above provisions. However, in the interpretation of the above provisions, it shall be determined by considering the overall circumstances such as the payment practices of the defendant corporation based on the above provisions and the details and details of the amendment.

However, among the allowances listed in Article 13 of the former Remuneration Regulations, the nature of the day-to-day allowance has the nature of compensation for actual expenses consumed due to food expenses on the day-to-day day (Supreme Court Decision 90Meu10312 Decided November 27, 1990), and it is difficult to view it as remuneration for labor (Supreme Court Decision 90Meu10312 Decided November 27, 1990). However, the average wage under Article 15 of the former Remuneration Regulations and the average wage under Article 3 of the former Retirement Benefit Regulations interpreted as the same meaning cannot be deemed as the average wage under the Labor Standards

In addition, the amended retirement benefit provision limits the amount corresponding to the "monthly allowance" among the average wage before the amendment to the "monthly allowance" to the "monthly allowance (construction allowance, overtime work allowance, holiday work allowance, and monthly leave allowance)". According to the records, although the family allowance included as one of the current salary regulations since January 1, 1981 when the retirement benefit provision was amended, the defendant corporation does not include the above retirement benefit provision in the average wage (monthly salary) which is the basis for calculating the retirement benefit even before the amendment, and even if the amount of the plaintiffs' remuneration is calculated by applying the progressive payment rate based on the average wage excluding the above family allowance, the above family allowance is included in the average wage, and even if the amount of the plaintiffs' remuneration is calculated by applying the progressive payment rate based on the pre-revision standard, it can be acknowledged that the amount of the above retirement benefit is more than the average wage calculated based on the standard under Article 28 (1) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996).

On the other hand, the Supreme Court en banc Decision 93Da26168 Decided July 11, 1995 held that a party member already made a decision with the same purport as this decision of October 25, 1996, and the Supreme Court en banc Decision 93Da26168 Decided July 11, 1995 held that the defendant should calculate the plaintiff's retirement allowance in accordance with the retirement benefit rules after the amendment of the court below, and the argument that the average wage under the provisions on retirement benefits before the amendment is different from that under the Labor Standards Act, is due to the new argument that the defendant's claim was not accepted as a legitimate ground for final appeal since the average wage under the provisions on retirement benefits before the amendment is different from that under the Labor Standards Act.

Nevertheless, the judgment of the court below that the family allowance is included in the average wage under the provisions on retirement benefits before the revision is erroneous in the misunderstanding of legal principles as to average wage under the provisions on retirement benefits before the revision, which affected the conclusion of the judgment. Therefore, there is a reason to point this out.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)