Attached 1 List of Plaintiffs (Attorney Kwon Young-young, Counsel for the plaintiff-appellant)

Algerts Life Insurance Co., Ltd. (Attorneys Lee Tae-son et al., Counsel for the defendant-appellant)

November 10, 2010

Seoul Central District Court Decision 2009Gahap21848 Decided June 24, 2010

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from January 1, 2009 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Basic facts

A. The defendant is a corporation whose main business is life insurance business, etc., and the plaintiffs are employees employed by the defendant and work.

B. The Defendant’s rules of employment, RGP provisions concerning annual paid leave, benefits, and welfare RGP concerning annual paid leave are as follows:

Rules of Employment RogP*

Article 20 (Legal Leave)

(1) The defendant grants the following legal leave to employees:

1. Annual leave:

(a) 15 days for a person who has worked at least 80 percent of a year;

(b) For a person who has served for not less than two years, each one day for each year of continuous service exceeding one year shall be added to the number of days of leave in item (a); and

(c) A person who has been employed for less than one year during the period of annual leave shall be granted an annual leave equivalent to the period of employment;

(2) The defendant shall grant annual leave at the time when the employee makes a request: Provided, That where granting leave at the time when the employee makes a request causes substantial inconvenience to the operation of his/her duties, the period may be changed.

(3) Annual leave may be used by an employee only for one year on his/her own free will.

(4) When an employee has not used his/her annual leave of absence due to the circumstances of his/her duties, the defendant shall pay compensation to the number of days unused by benefits and welfare RGP.

Article 19 (Compensation for Leave) Any employee who has not used annual leave due to the circumstances of the defendant, shall be paid the relevant number of days as follows:

1. Vacation compensation shall be paid for each day 】 ordinary wage 】 1.15 ± 183 】 8;

2. The calculation period of the number of days of annual leave shall be from December 1 of the preceding year to November 30 of the current year.

3. A leave compensation shall be paid to any person who has less than one year employed during the period of calculating annual leave in proportion to the number of months of his/her service.

4. The time of payment shall be December of the year concerned;

C. From January 23, 2008 to September 12, 2008, Az.’s trade union engaged in a legitimate strike (hereinafter “instant strike”). Accordingly, the Plaintiffs did not provide labor to the Defendant during a certain period of time (hereinafter “the period of strike”).

D. The Defendant calculated the annual paid leave (hereinafter “annual paid leave”) from December 1, 2008 to November 30, 209 (hereinafter “the calculation period of this case”) by multiplying the number of days of annual paid leave (hereinafter “annual paid leave”) by the number of days of annual paid leave. In general, the Defendant shall determine whether the Plaintiffs worked at least 80 percent on the basis of the number of contractual working days (hereinafter “ordinary paid leave days”) excluding the strike period and the childcare leave period. However, if the above 80% or more meets the requirements for annual paid leave, the Defendant calculated the amount of annual paid leave from 00 days to 100 days of annual paid leave by the Plaintiffs’ number of days of annual paid leave from 20 days of annual paid leave to 200 days of annual paid leave from 10 days of annual paid leave to 200 days of annual paid leave, and the Plaintiffs were not included in the amount of annual paid leave from 20 days of annual paid leave from 10 days of annual paid leave.20 days of annual paid leave.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 6, purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Article 60(1) of the Labor Standards Act and Article 20(1)1 of the Rules of Employment of Defendant RGP on the ground that the number of annual leave days based on the basic annual leave of 15 days and the number of annual leave of absence is recognized. However, the Defendant reduced the number of annual leave days in proportion to the period of strike and the period of childcare leave by multiplying the number of annual leave days acquired by the Plaintiffs, thereby paying annual leave allowances only for the remaining number of annual leave days. Therefore, the Defendant is obliged to pay the Plaintiffs the remaining annual leave allowances after deducting the annual leave allowances already paid to the Plaintiffs from the annual leave allowances corresponding to the number of annual leave days.

B. Defendant’s assertion

The most important purpose of the annual leave system is to provide mental and physical relaxation for a long period of time, and the annual leave is to exempt the duty to provide labor corresponding to the period of the duty to provide labor in essence. As such, with respect to the period of the duty to provide labor, the employer does not have the corresponding duty to provide labor, and there is no room for occurrence of annual leave. Furthermore, as long as the worker has not provided labor during the period of strike or childcare leave, there is no duty to provide labor, there is no room for occurrence of annual leave. In addition, in calculating the number of annual leave days of the nature of compensation for faithful labor, it is reasonable to pay annual leave allowances for the number of days of leave after calculating the number of days of annual leave according to the ratio of the actual working days excluding the period of strike and the period of childcare leave to the number of days of childcare leave. Accordingly, the Plaintiffs’ claim for annual leave allowances is without merit.

3. Determination

A. The issues of the instant case

The defendant calculated the number of annual leave days for the calculation period of this case by multiplying the number of days of annual leave corresponding to the plaintiffs' length of service by the number of days of annual leave (%) where the plaintiffs worked for more than 80 percent on the basis of the actual number of working days subtracting from the number of days of annual leave and the period of annual leave, and where the above 80 percent or more of working hours meet the requirements for the attendance rate, the defendant calculated the number of annual leave days by multiplying the number of days of annual leave corresponding to the plaintiffs' length of service (i.e. (the number of regular working days - the number of excluded contractual working days) / 100, excluding contractual working days x 100, excluding contractual working days : the

B. Determination on issues

1) The significance of annual leave and annual leave allowances

The annual leave is significant in order to provide workers with mental and physical relaxation opportunities by exempting them from the duty of work for a certain period of time (see Supreme Court Decision 2008Da41666, Oct. 9, 2008). The annual leave allowance is to be paid in cases where a worker does not take annual leave or is unable to use annual leave due to retirement, etc. for one year after acquiring the right of annual leave when he/she takes the right of annual leave, and the annual leave allowance is to be paid in cases where he/she does not take annual leave for one year after acquiring the right of annual leave or annual leave when he/she provides his/her work without taking the right of annual leave (see Supreme Court Decision 91Da14826, Nov. 12, 191).

2) Requirements for establishing non-fixed working days and annual leave rights

A) General theory

Article 60(1) of the Labor Standards Act provides that "an employer shall grant 15-day paid leave to an employee who has worked for not less than 80 percent per year," and Article 20(1)1 of the Rules of Employment of the Defendant provides that "the Defendant shall grant 15-day paid leave to an employee who has worked for not less than 80 percent per year." Accordingly, the annual paid leave is granted only to an employee who has worked for not less than 80 percent per year on the basis of the period that is one year. The year above is the basis for calculating the rate of attendance. The year above is deemed to be the basis for calculating the rate of attendance, which is recognized as having no obligation to provide labor in 365 days, and the number of contractual working days except for the weekly paid leave prescribed in the collective agreement (as seen earlier, the Defendant is referred to as "ordinary contractual working days," and thus, this term is used as it is, hereinafter).

Furthermore, with respect to the establishment of annual leave rights in the case of the strike period of this case and the period of childcare leave, the Labor Standards Act or the Defendant Employment Rules RGP does not have any special provision. Therefore, with respect to the establishment of annual leave rights in this case, reasonable interpretation is necessary by comprehensively examining the significance of the annual leave system, the purpose of establishing the annual leave rights, the purpose of establishing the annual leave rights, the nature of the strike period and the childcare leave period.

First, since the period for which a worker is not obliged to provide labor under the statutes or the contractual terms is difficult to see it as the contractual working days, and the period for which the worker did not provide labor for reasons attributable to him/her, it is reasonable to determine whether the worker satisfies the attendance requirement at work for at least 80 percent based on the remaining period (which is referred to as the "regular working days" in the preceding) after excluding from the contractual working days in the above light.

Then, the actual number of working days may vary from 1 to 20 days near the normal number of working days. If the actual number of working days is 80 or more per annum regardless of the actual number of working days, i.e., whether the same number of working days is in contravention of the Labor Standards Act if the annual number of working days is calculated pro rataly, i.e., whether the instant work violates the Labor Standards Act is established. However, there is no provision that the annual leave is pro rata to the actual number of working days under the Labor Standards Act, but i) it is intended to allow workers to enjoy emotional and physical recreation and enjoy cultural life due to the exemption from the duty to work for a certain period of time. ii) Since it is apparent that 15 days per annum under the Labor Standards Act is based on the premise that the actual number of working days is less than 15 days per annum, it is reasonable to interpret that the annual leave is more than 15 days per annum, and thus, it is reasonable to interpret that the annual leave is more than 15 days per annum or 6 days per annum.

Then, this study examines the nature of the period of strike and the period of childcare leave, and then examines the calculation of the number of days of annual leave.

B) Calculation of the period of strike and the number of days of annual leave;

Article 44(1) of the Trade Union and Labor Relations Adjustment Act provides that "an employer shall not have an obligation to pay wages during the period for a worker who has participated in an industrial action and has not provided labor." Thus, it seems reasonable to not grant an annual leave having the nature of remuneration for labor during a certain period of period of the strike, and the employer's right to strike is the fundamental rights of workers protected by Article 33(1) of the Constitution and Articles 33(1)6, 3, and 4 of the Trade Union and Labor Relations Adjustment Act. However, granting an annual leave for the period of strike does not grant an annual leave on the basis of the actual number of working days. Thus, it is difficult to view that there is a discrimination or restriction on workers on the ground that the worker has properly exercised his/her right to strike, and it is reasonable to interpret its establishment requirements in line with the purport of the right to annual leave, such as the defendant's calculation method, in accordance with the ratio of the actual number of working days except for the period of strike.

C) Calculation of the period of childcare leave and the number of annual leave days

Article 19(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act provides that “When an employee applies for temporary retirement (hereinafter referred to as “temporary retirement”) to raise his/her pre-school children under the age of six (including adopted children), the employer shall grant it.” Paragraph (3) of the same Article provides that “the employer shall not dismiss or dismiss the employee on the ground of temporary retirement, and shall not dismiss the employee during the period of temporary retirement.” Paragraph (2) of the same Article provides that “The period of temporary retirement under Paragraph (2) includes the period of continuous service” and Paragraph (3) of the same Article provides that Article 19(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act provides that the payment of benefits for the period of temporary retirement shall not be made. In addition to the purport of the argument stated in Paragraph (3) of the same Article, the employer’s payment of benefits and Welfare-Family Balance Assistance Act provides that the employee is exempt from his/her duty based on the provisions of Acts, but does not legally reduce the number of days of temporary retirement for the employee who did not provide his/her work.”

3) Sub-decisions

Therefore, it is reasonable to view that the Defendant has fully performed the obligation to pay annual leave allowances under the Labor Standards Act by calculating the number of annual leave allowances by means of multiplying the number of annual leave days by the attendance rate for the period excluding the number of regular working days from the number of regular working days excluding the number of regular working days / (excluding the number of regular working days / normal contractual working days) / 100, excluding contractual working days : the period of childcare leave and the period of strike : it is reasonable to deem that the Defendant has fully performed the obligation to pay annual leave allowances under the Labor Standards Act. The Plaintiffs’ claims on the premise that calculating the number of annual leave days by multiplying the number of annual leave days by the number of regular working days

4. Conclusion

Therefore, the plaintiffs' claims are all dismissed due to the lack of reasonable grounds, and the judgment of the court of first instance is unfair, so the defendant's appeal is accepted, the judgment of the court of first instance is revoked, the plaintiffs' claims are all dismissed, and it is so decided as per Disposition.

[Attachment]

Justices Cho Jae-dae (Presiding Justice)