2012Da70388 Retirement Allowance

person

The person who received the lawsuit from the deceased A

1. B

2. C.

3. D;

4. E.

Oral Transport Corporation

Daegu District Court Decision 2012Na2710 Decided July 11, 2012

October 27, 2014

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The defendant's appeal is dismissed.

1. Where there is no precedent of the Supreme Court with regard to the interpretation of statutes applicable to a small case in a specific case, there is a case where a number of small claims, the issue of which is the interpretation of the same statutes, are pending in the lower court, and the court makes a decision on what is in accordance with the adjudication division, on the ground that it is a small amount case, and the Supreme Court terminates the case without making a decision on the interpretation of the relevant statutes, it would be likely to impair the legal safety of people's lives. In such special circumstances, even if the Supreme Court did not meet the requirement of "when it makes a decision contrary to the precedents of the Supreme Court" that can be raised as the ground for appeal in relation to the small amount case, it shall be deemed that the decision may be made ex officio with regard to the error in the application of the interpretation of the substantive law at the level of performing the fundamental function of the Supreme Court, which is the unification of statutory interpretation (see, e.g

2. Details that the amount of wages included in the minimum wage of drivers in taxi transport business shall be the wages prescribed by Presidential Decree, excluding the wages calculated based on the output;

In calculating retirement allowances for retired workers after the enforcement of Article 6(5) of the newly established Minimum Wage Act, there is no precedent of the Supreme Court regarding whether to reduce the average wage calculated pursuant to the above provision, and there is a situation in which the lower court's determination is different. Thus, the lower court's determination as to the interpretation and validity of the above provision of this case is ex officio.

Article 6 (1) of the Minimum Wage Act provides that "an employer shall pay workers to whom the minimum wage is applied the wages above the minimum wage amount"; Article 6 (3) provides that "the part where the amount short of the minimum wage amount among the labor contracts between the workers to whom the minimum wage is applied and the employer is determined as wages shall be null and void, and in such cases, the invalidated part shall be deemed to have been paid the same wage as the minimum wage prescribed by this Act; Article 6 (5) (hereinafter referred to as "the provisions of this case") provides that "the scope of wages included in the minimum wage of workers engaged in driving service in the taxi transport business shall be prescribed by Presidential Decree, excluding the wage calculated on the basis of the output;" Article 5-2 of the Enforcement Decree of the Minimum Wage Act provides that "wages prescribed by Presidential Decree" shall be prescribed by collective agreements

The term “wages” means wages paid at least once a month: Provided, That wages, other than those paid for contractual work hours or prescribed working days, and those paid for the livelihood and welfare of workers, shall not be included. In addition, Article 34 of the Labor Standards Act and Article 8 of the Guarantee of Workers’ Retirement Benefits Act provide that “an employer who intends to establish a retirement allowance system shall set up a system for the payment of average wages for at least 30 days for each year of continuous employment (the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the retirement date by the total number of days during that three-day period), and the above retirement allowance system is a mandatory provision (see, e.g., Supreme Court Decision 2002Da5155, Jun. 25, 2004).

Thus, if a retired employee received wages below the minimum wage under the above provision after the enforcement date of the above provision, the employer who runs the passenger taxi transport business is obligated to pay the retirement allowance calculated on the basis of the average wage which includes not only the wages actually paid to the above employee for three months prior to the retirement date, but also the wages which should be paid as a matter of course under the above provision.

3. The lower court determined that the Defendant is obligated to pay retirement allowances calculated by applying the minimum wage under the above provision as the average wage and compensation for delay thereof to the deceased A (hereinafter “the deceased”) retired on or after July 1, 2010 when the provision of this case was enforced in the Gu-U.S. Si where the Defendant was the Defendant’s place of business, and on November 24, 2010, the amount of retirement allowances to be paid by the deceased was determined as 65% of the amount calculated as above on the grounds of the circumstances stated in its reasoning, such as equity in the amount of retirement allowances between the retired workers before and after the enforcement of the above provision, and the amount of transport income already paid by the deceased.

4. However, in light of the above legal principles, the defendant is obligated to pay the deceased a retirement allowance calculated by calculating the minimum wage under the provision of this case as the average wage, and considering all the circumstances as decided by the court below, it shall not be allowed to reduce it without permission.

Nevertheless, the court below determined otherwise on the basis of the circumstances stated in its holding. The court below erred by misapprehending the interpretation of the provision of this case, which affected the conclusion of the judgment.

Supreme Court Decision 2009Da99396 Decided April 15, 2010, which the court below used as the basis for reduction, is not appropriate to apply to this case as the purport that the average wage should be separately calculated in a reasonable and reasonable way that can reflect the ordinary living wage of workers, in exceptional cases where the average wage, which is the basis for the calculation of retirement benefits, is remarkably less or more than the ordinary wage paid.

Therefore, the defendant's ground of appeal that the retirement allowance of the deceased should be reduced more than the amount recognized by the court below is without merit, and the plaintiffs' ground of appeal that the court below's reduction of retirement allowance is illegal is with merit.

5. Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justice Shin Shin Young-young

Justices Lee Sang-hoon

Justices Cho Jong-hee