[1] Where the rules of employment were modified disadvantageously to workers without the consent of the worker group, the rules of employment with the current legal effect (=the amended rules of employment)

[2] The retirement allowance provision applicable to a worker who is not the largest number of workers when the retirement allowance provision for the largest number of workers was enforced without the consent of the worker group (=the revised retirement allowance provision)

[3] The method of calculating retirement allowances in cases where the retirement allowance provision during the continuous service period has been changed to its validity

[4] The method of calculating retirement allowances in cases where there are changes in the direct employment period and the rate of payment of retirement allowances according to the direct employment differs

[5] The scope of annual leave allowances included in average wages under the Labor Standards Act

[6] The validity of the provision of retirement allowance more favorable than the provision of Article 28(1) of the Labor Standards Act (effective)

[1] Even if the employer did not obtain the consent of the employee in accordance with the method of collective decision-making in revising the rules of employment disadvantageous to the employee, as long as the right to prepare and revise the rules of employment exists in the employer, the rules of employment with the current legal effect are the revised rules of employment, but the previous rules of employment applies to the existing

[2] Under Article 28(2) of the Labor Standards Act and Article 28(2) of the Addenda of the Labor Standards Act prohibiting retirement pay system, where retirement pay system applies to the largest number of workers within the pertinent business from April 1, 1981, if the retirement pay provision for the largest number of workers was modified disadvantageously to workers without obtaining consent by collective decision-making method, even though the provision for retirement pay prior to the amendment is applied to those who belong to the largest number of workers, and who are employed before the amendment, for the purpose of protecting the profits of the retirement, the revised retirement pay provision which has the legal effect for those who do not belong to the largest number of workers should be applied.

[3] The specific claim for a retirement allowance arises under the requirement of "retirement" that the continuous service period ends. Thus, if the rules for a retirement allowance were changed by an employer during the continuous service period, in principle, the revised rules for a retirement allowance should be applied to the continuous service period before the change, unless the rules for a retirement allowance violate the vested interests of workers as well as the continuous service period after the change. This legal principle is the same as in the case where the rules for a retirement allowance are not changed by an employer, but is prohibited by Article 28 (2) of the Labor Standards Act, newly established by Act No. 3349 of Dec. 31, 1980, which was amended by Act No. 3349 of Apr. 1, 1981, and the retirement allowance system applied to the

[4] Unless otherwise expressly provided in the rules of employment or collective agreement regarding the method of calculating retirement allowances in cases where a change of the position is made in the middle of the continuous service period and there is a difference in the payment rate of retirement allowances according to the class of the position, the payment rate shall be based not only on the payment rate of the class at the time of retirement but also on the average wage which forms the basis of calculation of retirement allowances at the time of retirement,

[5] Average wages, which are the basis for calculating retirement allowances, refer to the total amount of wages paid for the relevant worker during the three-month period before the date of retirement, to the total amount limited to the total number of days during that three-month period. Even though it was possible to receive annual paid leave under Article 48 of the Labor Standards Act because it was not used, the annual paid leave allowances do not constitute the basis for calculating average wages, in cases where part of the annual paid leave allowances are included within the three-month period before the date of retirement, which is the basis for calculating the annual paid leave allowances, and where a worker retires without having worked for the previous one-year period as of the time when the right to annual paid leave was created, if the number of days worked during that period falls short of the total number of days worked during that period, then the annual paid leave allowances do not constitute the basis for claiming annual paid leave allowances, as it does not constitute the basis for calculating the annual paid leave allowances.

[6] Article 28(1) of the Labor Standards Act provides the lowest amount of retirement allowances to be paid to the retired employee, and if there are provisions of employment rules or collective agreements which provide more favorable to the employee, the amount of retirement allowances must be calculated accordingly.

[1] Article 95(1) of the Labor Standards Act / [2] Articles 28(2) and 95(1) of the Labor Standards Act, Article 95(2) of the Addenda ( December 31, 1980) / [3] Articles 28(2) and 95(1) of the Labor Standards Act / [4] Article 28 of the Labor Standards Act / [5] Articles 28 and 48 of the Labor Standards Act / [6] Articles 2 and 28(1) of the Labor Standards Act

[1] [2] [6] Supreme Court Decision 96Da3241 delivered on September 10, 1996 (Gong1996Ha, 2996) Supreme Court Decision 95Da30826 delivered on December 23, 1996 (the same purport) / [1] [3/4] Supreme Court en banc Decision 95Da1679 delivered on January 24, 1997 (the same purpose) / [1] 95Da3979 delivered on December 29, 196 (Gong197Da4969 delivered on December 22, 1992) / [1] Supreme Court en banc Decision 91Da45165 delivered on September 29, 197 (Gong1993Da94979 delivered on December 29, 196) / [2] Supreme Court Decision 97Da94979 delivered on December 29, 199

[Defendant-Appellant] Plaintiff 1 and four others (Attorneys Lee Won-soo et al., Counsel for defendant-appellant)

Korea Highway Corporation (Law Firm Dong-dong Law Office, Attorneys Lee Jin-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na7835 delivered on June 21, 1995

The part of the judgment of the court below against the defendant against the plaintiff Park Jong-chul, Park Jong-young, and Kim Jong-sik is reversed, and that part of the case is remanded to the Seoul High Court. The appeal against the plaintiff Park Jong-chul, Park Jong-young and the appeal against the defendant's right to the plaintiff Lee Jong-chul is all dismissed. The costs of the appeal against the dismissed part shall be borne by each party.

1. We examine the grounds of appeal by the defendant's attorney.

A. As to the second ground for appeal

Even if an employer did not obtain the consent of the employee in accordance with the collective decision-making method in revising the rules of employment, as long as the employer has the right to prepare and revise the rules of employment, the rules of employment with the current legal effect are the revised rules of employment (see Supreme Court en banc Decision 91Da45165 delivered on December 22, 192). Thus, the previous rules of employment shall apply to the existing employee whose vested profit is infringed (see Supreme Court Decision 91Da45165 delivered on December 2, 1992). Thus, Article 28(2) of the Labor Standards Act which prohibits retirement payment system (No. 3349 delivered on December 31, 1980) and Article 28(2) of the Addenda of the Labor Standards Act (No. 3349 delivered on April 1, 1981) applies to the retirement allowance system that applies to the largest number of workers within the pertinent business without the consent of the employee in a collective decision-making method.

In addition, the specific right to claim a retirement allowance arises from the requirement of "the continuous retirement" (see Supreme Court Decision 92Da17754 delivered on September 14, 1992), so if the retirement allowance rules are changed by the employer during the continuous service period, the revised retirement allowance rules should apply to the continuous service period before the change, in principle, unless the change does not infringe the vested interests of workers as well as the continuous service period after the change (see Supreme Court Decision 89Meu15939 delivered on November 27, 1990). This legal principle does not change the retirement allowance rules by the employer, not by the employer, but by the above provisions of the Labor Standards Act (No. 3349 delivered on December 31, 1980), and the retirement allowance system applied to the largest number of workers within the business concerned is identical (see Supreme Court Decision 200Da2349 delivered on September 26, 195).

According to the reasoning of the judgment of the court of first instance cited by the court below, the plaintiff's right of absence shall be paid to the defendant Corporation on June 1, 1971, and on December 20, 1991, after he was employed as an employee in general service from around May 23, 197; on December 10, 1969, he retired from office; on March 25, 1971; on February 1, 197, the plaintiff Kim Jong-chul shall be paid the retirement allowance rate of the total amount of retirement allowance under the above revised provision for 19 months to the employees in general service; on March 31, 192, the plaintiff Park Jong-young shall be applied to the above revised provision for 19 years to the employees in general service, and on December 31, 1993 to the retirement allowance rate of the above revised provision for 19 years to the employees in general service, the plaintiff Park Jong-dae shall be changed to the retirement allowance rate of the above revised provision for 1 month.

Therefore, even if the revised retirement allowance provision on January 1, 1981 has the current legal effect, it is clear that the above retirement allowance provision would infringe upon the vested rights of the employees in general service who were employed before the revision. Thus, the above retirement allowance provision should be applied as a matter of course to the service period after the revision of the above retirement allowance provision for the change of the current position in general service after the change of the current position in the Plaintiff’s vested rights.

In addition, unless otherwise specified in the rules of employment or collective agreement with regard to the method of calculating retirement allowances in cases where there is a change of the position in the middle of the continuous service period and there is a difference in the rate of payment of retirement allowances according to the class of the position, the payment rate shall be based on the rate of payment of the class at the time of retirement, as well as on the average wage at the time of retirement, which is the basis of calculation of retirement allowances, after the change of the class of the position (see Supreme Court en banc Decision 93Da26168 delivered on July 11, 195). Therefore, the revised rules of retirement allowances shall be applied to the continuous service period prior to the change of the class

Therefore, the court below's calculation of retirement allowance by applying the retirement allowance provision prior to the revision for the whole continuous service period of the plaintiff's right or not is justified and there is no error in the judgment below's theory as to the lawsuit. There is no reason to argue

Then, according to the records, with respect to the retirement allowance rules applicable to Plaintiff Park Byung-young, Park Jong-young, Kim Jong-mun, and Park Jong-young, it can be known that Plaintiff Park Byung-chul was employed as an employee in extraordinary civil service at the time of original adjudication, and that he retired from his office on the date and time of the ruling. If the facts are same, the above provision of the Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980) effective as of April 1, 1981, which was amended by Act No. 28(2) of the Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1981), since the above provision of the retirement allowance rules applicable to employees in general service as of January 1, 1981, the above provision of the retirement allowance rules should be applied to employees in extraordinary civil service as of December 10, 196 to the above revised retirement allowance rules, including the Plaintiffs' retirement allowance rules applicable to the above revised retirement allowance rules after 19.

Nevertheless, the court below calculated the retirement allowance by applying the retirement allowance provision prior to the amendment to the whole continuous service period of the above plaintiffs on the grounds as stated in its reasoning. The court below erred by misapprehending the facts against the rules of evidence, failing to exhaust all necessary deliberation on the retirement allowance provision applicable to the calculation of retirement allowance, or by misapprehending the legal principles, and it is obvious that such illegality affected the judgment. Therefore, it is reasonable to

B. Ground of appeal No. 1

In addition, since the above plaintiff was authorized by the Minister of Labor on the exclusion of the application of the provisions of the Labor Standards Act on the working hours, etc. to the above plaintiff, the basic wages paid by the above plaintiff are included in overtime work allowances, holiday work allowances, and night work allowances. However, since this is a new fact that was not asserted by the court below, it cannot be a legitimate ground for appeal, and there is no evidence to acknowledge it in light of the record.

2. We examine the Plaintiffs’ grounds of appeal (the grounds of supplementary appeal stated in the supplemental appellate brief submitted after the lapse of the period for supplemental appellate brief are to the extent of supplement in case of supplemental appellate brief).

A. As to the Plaintiff’s right of mining

The average wage, which is the basis for the calculation of retirement allowances, refers to the total amount of wages paid as an object of the relevant work in the three-month period prior to the date of retirement, and the total amount of wages paid as an object of the relevant work is limited to the total number of days during that three-month period. Thus, even though the employee was able to receive annual paid leave in accordance with Article 48 of the Labor Standards Act because he did not use it, the annual paid leave allowances do not constitute the amount of annual paid leave allowances for the one-year period prior to the year of retirement, and thus, it is not the amount of annual paid leave allowances for the pertinent three-month period. Thus, if part of the annual paid leave allowances, which is the basis for the right to annual paid leave allowances, is included within the three-month period prior to the date of retirement, only the annual paid leave allowances falling under the relevant part, shall be included in the total amount of wages which are the basis for the calculation of average wages (see Supreme Court Decision 93Da4649, May 24, 1994).

In addition, as alleged in the novel, even though the Defendant Corporation has included annual leave allowances in the average wage, regardless of whether the annual leave allowances are the wages for the preceding three months of retirement or not, it appears that the Defendant Corporation erred in the legal nature of annual leave allowances. Therefore, it is difficult to conclude that there was an implied agreement between the Defendant Corporation and its employees to include the annual leave allowances in the average wage, which is the basis for calculating the annual leave allowances.

In addition, as argued in the novel, even if the above plaintiff acquired his annual paid leave from June 1, 1990 to May 31, 1991 by attending for attendance or working for more than 90 percent, since the annual paid leave allowance is the remuneration for work from June 1, 1990 to May 31, 1991, it shall not be included in the average wage which serves as the basis for calculating the retirement allowance of the above plaintiff who retired on December 20, 1991.

Finally, if an employee fails to continue to work for the preceding one year as of the time when the right to annual paid leave occurs and retires, if the number of working days during that period falls short of the number of working days that can receive annual paid leave, the right to claim annual paid leave allowances equivalent to the number of working days does not arise (see Supreme Court Decision 91Da14826, Nov. 12, 1991). As long as the above Plaintiff was unable to continue to work for the preceding one year as of June 1, 192, and the number of working days during that period falls short of the number of working days that can receive annual paid leave, there is no right to claim annual paid leave allowances equivalent to the number of working days between June 1, 191 and December 20, 191.

Therefore, the court below's failure to include annual leave allowances in the average wage, which is the basis for calculating the above plaintiff's retirement allowance, is just, and there is no error in the misapprehension of legal principles as to annual leave allowances, such as the theory of lawsuit, or in the misapprehension of legal principles as to annual leave allowances. There

B. As to Plaintiff Park Byung-chul, Park Jong-young, and Kim Jong-chul

Article 28(1) of the Labor Standards Act provides the lowest amount of retirement allowance to be paid to the retired employee, so if there are rules of employment or collective agreement which provide more favorable to the employee than the above provision, the retirement allowance should be calculated accordingly (see Supreme Court Decision 93Da46841 delivered on May 24, 1994).

However, the above plaintiffs' retirement allowances should be calculated by applying the revised retirement allowance rules on January 1, 1981, and according to the above retirement allowance rules, the "monthly salary which serves as the basis for the calculation of retirement allowances" means that the sum of the basic salary paid in the last three months from the date immediately preceding the retirement date, and the allowances paid in the last three months from the date immediately preceding the retirement date (construction allowance, overtime work allowance, holiday work allowance, monthly leave allowance), annual leave allowance paid in the preceding one year, and bonus allowance paid in the preceding three equal amounts. If the retirement amount of the above plaintiffs' retirement allowance calculated by the above retirement allowance rules of the defendant corporation exceeds the aggregate calculated pursuant to Article 28 (1) of the Labor Standards Act, the annual leave allowance paid in the preceding one year to the above plaintiffs shall be included in the corresponding monthly retirement allowance regardless of whether some part of the year preceding the retirement period was included in the three months preceding the retirement day.

Nevertheless, the court below did not include annual leave allowances in the monthly salary which is the basis for the calculation of retirement allowances of the above plaintiffs. Therefore, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on retirement allowance regulations, and it is obvious that such illegality has influenced the judgment, and therefore, there is a reason to point this out.

C. As to Plaintiff Park Sang-young

According to the reasoning of the first instance judgment cited by the court below, it is clear that annual leave allowances were included in the monthly salary, which serves as the basis for the calculation of retirement allowances, in calculating the retirement allowances for the above plaintiff. Therefore, there is no reason to argue.

3. Therefore, the part of the judgment of the court below against the defendant as to the plaintiff Park Byung-chul, Park Jong-young and Kim Jong-sik and the part against the defendant as to the plaintiff Park Jong-young shall be reversed, and that part of the case shall be remanded to the Seoul High Court, and all of the appeals as to the plaintiff Park Jong-chul and Park Jong-young and the defendant's right to appeal shall be dismissed, and the costs of appeal as to the dismissed part shall be borne by the losing party. It is so decided as per Disposition by the assent

Justices Shin Sung-sung (Presiding Justice)