Whether the retirement allowance system, which is not based on average wage, is invalid in a case where the amount of benefits established by the company and the amount of retirement benefits exceeds the amount of retirement benefits guaranteed by Article 28 of the Labor Standards Act.

The purpose of Article 28 of the Labor Standards Act is to establish a retirement allowance system so that the amount may exceed the minimum amount guaranteed under the same Article, and accordingly, to pay the retirement allowance accordingly. Therefore, in a case where the amount of retirement allowance calculated by multiplying the amount of wages and the payment rate of retirement allowances established by the Defendant Company exceeds the minimum amount of retirement benefits guaranteed under Article 28 of the Labor Standards Act, even if part of the allowances did not constitute the basis of average wages,

Article 28 of the Labor Standards Act

On November 13, 1973, 73Da1384 decided Nov. 13, 1974 (Supreme Court Decision 10589 decided Nov. 10, 195; Supreme Court Decision 21No3Do381 decided Nov. 181; Decision No. 28(11)1598 decided Nov. 15, 197)

Plaintiff

Defendant corporation

Seoul Central District Court (72 Gohap5347) in the first instance trial

The part against the defendant in the original judgment shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

The plaintiff's appeal is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

The plaintiff's attorney shall pay to the plaintiff an amount of 7,040,206 won with 5% per annum from the following day of service to the full payment day: the defendant shall pay to the plaintiff an amount of 7,040,206 won per annum.

The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution are sought.

The plaintiff's attorney shall revoke the part against the plaintiff in the original judgment.

The defendant shall pay to the plaintiff the amount of 6,390,121 won and the amount at the rate of 5 percent per annum from the next day of service to the next day of full payment.

All the costs of lawsuit are assessed against the defendant in the first and second instances, and a declaration of provisional execution is sought, and the defendant's attorney is seeking the same judgment as the disposition.

In light of the facts that the plaintiff joined the company as an employee of the defendant company on July 21, 194 and the facts that the plaintiff retired on March 18, 1972, the plaintiff asserted that it had no dispute between the parties. As such, the plaintiff was employed for 2 years and 3 months without the retirement date of the defendant company, the defendant's claim for retirement allowance based on the above facts was asserted that the plaintiff retired on April 7, 1962 and had worked for 4 March 18, 1972. Thus, the issue of this case was that the plaintiff continued to serve for 9 days from July 21, 1949 to March 18, 1972 after deducting the remaining facts that the non-party 2 had received on the non-party 1's retirement allowance from the non-party 2's non-party 1 and the non-party 2's non-party 1's non-party 1's non-party 2's non-party 9's new testimony.

Therefore, the plaintiff is obligated to pay only the retirement allowances corresponding to the period of continuous service from May 1, 1962 to March 18, 1972. The plaintiff is obligated to pay the plaintiff 100 won x 9 Eul evidence 10-2, Eul evidence 10, and Eul evidence 16 (Calculation of Average Wage) which is recognized as true by testimony of non-party 5 x 10-6 months . The plaintiff's salary of the defendant company is classified into basic salary and other allowances, 10 days for six months after May 197. 3, 197. The plaintiff's salary is calculated based on the above basic salary x 10-6 months x 14 months x 10-6 months x 10-6 months 10 months x 3 months 10-6 months , and the amount of retirement allowance is calculated based on the average wage of the defendant company 2.4 months after the above basic salary x 16 months . 2 months .

Since the Plaintiff received bonus allowances of 49,050 won and special allowances of 12,876 won from the Defendant Company before three months prior to his retirement, it is also calculated based on average wages of 100. Thus, Article 28 of the Labor Standards Act provides that an employer may pay an amount of 30 days or more as retirement allowances for the number of consecutive years of retirement when a worker retires. The purport of the above provision is to interpret that the amount of retirement allowances paid to an employee exceeds the minimum amount guaranteed under Article 28 of the Labor Standards Act, 30 days’ retirement allowances of 29 days’ retirement allowances of 20 days’ retirement allowances of 30 days’ retirement allowances of 29 days’ retirement allowances, 205’s retirement allowances’ retirement allowances’ total amount of wages of 29 days’ retirement allowances’ retirement allowances’ total amount of wages of 30 days’ retirement allowances’ retirement allowances’ retirement allowances’ total amount of wages of 30 days’ retirement allowances’ retirement allowances’ retirement allowances’ total amount of wages of 29 days’ retirement allowances’ total amount.

Therefore, even if the Defendant Company established the retirement allowance system based on the Plaintiff’s received allowances from the basic pay and the various allowances specified in attached Table 2 without being based on the average wage, which serves as the basis for calculating retirement allowances, this would exceed the minimum retirement amount guaranteed under Article 28 of the Labor Standards Act, and therefore, the retirement allowance system established by the Defendant Company is justifiable.

Therefore, the plaintiff's claim of this case shall be dismissed without merit, and since the original judgment which partially accepted the plaintiff's claim is unfair, the original judgment which accepted the defendant's appeal and revoked the part against the defendant among the original judgment, and dismissed the plaintiff's appeal corresponding to the part against the defendant, and the plaintiff's appeal is dismissed without merit. It is so decided as per Disposition with the costs of lawsuit at the first and second

[Attachment Table]

Judges Kim Young-ho (Presiding Judge)