In the calculation of retirement allowances, whether the provision on the payment of retirement allowances prescribed in the phrase “the average payment at the time of retirement of overseas financial resources shall be limited to the average payment in the same position in Korea

Article 28 and Article 19 of the Labor Standards Act provides that "the average pay at the time of retirement of overseas financial resources shall be limited to the average pay for the same position in Korea" shall be null and void in violation of the Labor Standards Act, which is a mandatory law, in calculating the number of days for the year of continuous service as the Labor Standards Act and in calculating the average wage.

Articles 2, 9, and 28 of the Labor Standards Act

May 11, 1976, Decision 71Da485 delivered on May 11, 197

Equitable type

Dahoyang Unemployment Inc.

1. The defendant shall pay to the plaintiff 27,420,446 won with the annual interest rate of 5% from April 9, 1983 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed only for the portion payable in 10,000,000 won.

The defendant shall pay to the plaintiff the amount of KRW 27,426,066 and the amount of KRW 5% per annum from April 9, 1983 to the date on which the complaint of this case was served, and the amount of 25% per annum from the next day to the date of full payment. The costs of the lawsuit shall be borne by the defendant and a declaration of provisional execution.

1. Factual basis

The plaintiff was employed on July 10, 197 and continued to work until April 8, 1983. The plaintiff was paid KRW 1,921,425 on January 1, 1983, KRW 1,916,070 on February 1, 91, and KRW 1,935,905 on March 1, 200, and the amount of monthly salary of Grade 1 to Grade 1 to Grade 3 to Grade 4 to Grade 5 to Grade 5 to Grade 3 to be paid to the defendant company. The amount of salary of Grade 1 to Grade 5 to Grade 3 to Grade 1 to Grade 5 to Grade 3 to Grade 9 to be paid to the defendant company is not in dispute, and the amount of salary of Grade 1 to Grade 4 to Grade 5 to Grade 1 to Grade 9 to Grade 7 to Grade 9 to be paid to the defendant company for 1 to Grade 4 to Grade 9 to Grade 7 to Grade 9 to the effect that the plaintiff's testimony was established.

2. Determination as to the plaintiff's claim

(a) Pay for April 1983;

According to the above facts of recognition, the defendant company is obligated to pay to the plaintiff an amount equivalent to 1/2 of the monthly wage as the monthly wage on April 1983 pursuant to Article 4(3) of the Rules on the Wages and Remuneration of Officers of the defendant company. Furthermore, in relation to the amount, the average amount of the monthly wage for the three months prior to retirement is 1,924,466 won (1,921,425 won (1,925 won for the first half of January 1, 1983 + 1,916,070 won for the second half of the same year + 1,935,905 won for the second half of March of the same year) ¡À3,905 won for the second half of the monthly wage, and thus, it is apparent that the amount of the monthly wage to be paid to the plaintiff on April 1, 1983 is less than 1,92,362,429,296).

(b) Bonuses;

If we gather each provision of the above-mentioned regular and continuous payment of bonuses, the above rules of employment, wages, and executive remuneration regulations, the bonus paid by the defendant company should be paid as remuneration for work in an institutional and compulsory manner, and the rate of payment should be determined at least 300 percent of the monthly average salary, and the amount should be determined as follows.

(1) 1981 bonus; and

The monthly average wages in 1981 are 1,34,142 won in 1,34,142 (16,129,712 won in aggregate of the monthly wages in the same year ± 12), and therefore, the bonus in the year concerned is 4,032,426 won in 1,342,426 won in x 300/100 in 1,344,142 in 1981 and the bonus in 629,470 won in 3,402,965 won in 1,000 in 200.

(2) 1982 bonus

The monthly average wage in 1982 is 1,791,611 won in money (21,49,335 won in total 21,49,35 won in the same year ±12) and therefore, the bonus in the year is 5,374,83 won in money (1,791,611 won in x 300/100 in total).

(3) For the year 1983

The monthly average wage between January 1, 1983 and March 3, 1983 is KRW 1,924,400 (on the basis of the foregoing, the amount of KRW 1,924,466 or the Plaintiff’s account). As such, bonuses for the above period are KRW 1,443,300 (the amount of KRW 1,924,400 x 300/100 x 3/102).

Therefore, the sum of bonuses to be paid by the Plaintiff is 10,221,089 won (3,402,956 won + 5,374,83 won + 1,443,30 won).

(c) Retirement pay;

The defendant company is obligated to pay the plaintiff a retirement allowance for 6 years and 9 months continuously to the plaintiff. Thus, the plaintiff asserts that the amount calculated by adding the three-month salary for his own three-month salary to the three-month salary before his retirement should be the basis for the calculation of the retirement allowance. Accordingly, the defendant's calculation of the retirement allowance under Article 3 of the Rules on the Payment of Retirement Allowances of the defendant company provides that the average wage at the time of his overseas retirement allowance shall be limited to the average wage for the same position in Korea. Thus, in calculating the retirement allowance for the plaintiff, it should be calculated based on the average wage for the same position in Korea, i.e., e., 650,00 won, the monthly salary, which is the chief wage, i.e., e., 650,00 won, and the bonus cannot be included in the calculation. Thus, according to the above provision, the defendant company's above provision on the retirement allowance for 2 years and above provision on the average wage for 1 year and above provision on the retirement allowance for 30 days in Korea.

Furthermore, with respect to the amount of the retirement allowance, the amount of the retirement allowance paid by the Plaintiff for six and nine consecutive years of his/her continuous service is to be calculated as average wages for 202.5 days (30 days x 6+9/12) x 5,773,200 won (1,921,425 won for monthly wage on January 8, 1983 + 1,921,925 won + 1,916,070 won for February 2, 1983 + 3.1,935,905 won for March 3, 195, actual amount was calculated as 5,773,90 won for the period x 1,43,00 won for the period x 1,43,300 won for the total amount of the monthly wage paid by the Plaintiff for the previous three months x 301,381,300 days for 205,300 won for 208.38 days (38 days for the total amount of wage).

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the above total amount of 27,420,446 won (962,233 won in installments of April 1983 + bonuses of 10,221,089 won-retirement allowances of 16,237,124 won) and damages for delay (the plaintiff shall pay damages for delay at the rate of 25 percent per annum, which is the interest rate under the Civil Act, from April 9, 1983 to the date of complete payment (the plaintiff shall be paid with the interest rate of 19,233 won in installments of April 1, 1983). Thus, the defendant is obligated to pay damages for delay at the rate of 5 percent per annum, which is the interest rate under the Special Act on the Promotion, etc. of Legal Proceedings, from the day after the complaint of this case is delivered to the day of complete payment. Thus, the plaintiff's claim of this case shall be accepted within the above recognized scope and shall be dismissed by accepting the remainder of the plaintiff's claim, and shall be dismissed by applying Article 929 of the Civil Procedure Act.

Judges Shin Sung-sung (Presiding Judge)