(a) Whether a worker is a full-time worker who has worked for four to fifteen days each month;

B. Whether a permanent worker should be deemed in the case where a worker has been employed as a day-time worker but the day-work relationship has not been interrupted;

(c) To calculate the number of consecutive years of employment, where the term of the employment contract is renewed simultaneously with the expiration of the employment contract or where the same conditions are repeatedly concluded;

(d) Calculation of the number of years of continuous employment, where a person has been employed as a regular employee and has continued to serve without any blank period;

(e) Calculation method of retirement allowances where a change of the position while the service period is changed and the rate of payment of retirement allowances is different depending on the position;

(f) If the company's articles of incorporation and the board of directors have undergone the deliberation of the company's articles of incorporation and the board of directors' rules on retirement benefits;

(g) Whether ratification after the fact or implied consent can be seen where the revised rules have been enforced because a trade union organized after the unfavorable revision of the rules of employment without the consent of the workers' group did not raise an objection

(h) The case holding that it is not reasonable in terms of social norms that may not obtain consent from a workers' group;

(i) Whether it is ratified that a trade union, which was established after the unfavorable revision of the rules of employment without the consent of the employee group, determines the collective agreement, and that the rules of employment in force are null and void, and “any matter not specified in the collective agreement” constitutes ratification in accordance with the relevant statutes and practices.

(j) Whether the grounds of appeal claiming a new fact that was not asserted by the court below are appropriate

(k) The case holding that family allowances constitute wages;

(a) the original employee must work for at least 25 days on an average monthly basis, not meeting the requirements of full-time, continuous, and dependent nature of the employee, which are the premise of the payment of retirement allowances under the Labor Standards Act, but if the employee continues to work for at least 4,5 days to 15 days in a month, the above requirements are satisfied.

(b)in form, even if a worker is employed as a full-time employee, if the relationship of daily employment continues without interruption, it should be regarded as a full-time employee.

(c) If the term of the employment contract is renewed simultaneously with the expiry of the employment contract or the employment contract is repeatedly concluded on the same condition, the number of consecutive years of employment shall be calculated by summing up all the renewed or repeated contract periods;

(d) the period of service as a temporary employee and the period of service as a regular employee should be the number of consecutive years of service, which serve as the basis for the calculation of retirement allowances, even if there is a change in the type of employment (type of occupation or position) during the continuous service period as if they were employed as a temporary employee and were employed as a regular employee without any blank period;

E. [Majority Opinion] Unless otherwise stipulated in the rules of employment or collective agreement on the method of calculating retirement allowances in cases where there is a change of position in the middle of the continuous service period and there is a difference in the rate of payment of retirement allowances in accordance with the classification of position, it is legitimate in accordance with the provisions of the rules of employment or collective agreement. However, if there is no such provision, the method should be derived through the interpretation of the rules of employment and collective agreement on the calculation of retirement allowances at the workplace in question. In this process, Article 28(1) of the Labor Standards Act should be the most important standard for interpreting the rules of employment and Article 28(1) of the Labor Standards Act. Under the same provision, the basic requirement for calculation of retirement allowances is three consecutive years of continuous service, retirement allowance rate, and average wages at the time of retirement. The average wages at the time of continuous service regardless of the change of position in the classification of retirement allowances are considered to be the continuous service period, and as long as it should be calculated based on the average wages at the time of retirement between three months before retirement under Article 19(1) of the Labor Standards Act, it should be changed.

[반대의견] 직류에 따라 퇴직금지급률을 달리하고 있는 사업장에 있어서 계속 근무기간 중 직류의 변경이 있고 그 직류변경에 따른 퇴직금 산정방법에 관하여 취업규칙이나 단체협약 등에 아무런 규정이 없는 경우에, 그 직류가 변경되기 전에 이미 이루어진 퇴직금에 관한 사용자와 근로자의 권리의무의 내용까지 그 직류의 변경에 따라 당연히 소급하여 변경되는 것이라고 할 수 없고, 이러한 경우 정규사원으로 임용되기 전의 근속기간에 대하여는 임시고용원에 대하여 적용되던 퇴직금지급률이나 근로기준법 제28조 제1항 소정의 규정에 의한 단순율(임시고용원에 대하여 적용되는 퇴직금규정을 두지 아니한 경우)에 따라 퇴직금지급일수를 산정하고, 여기에 정규사원으로 임용된 이후의 기간에 대하여는 정규사원에 대한 퇴직금지급규정에 따라 퇴직금지급일수를 산정하여(전근속기간에 대한 사원퇴직금지급률에 의하여 산정한 퇴직금지급일수에서 고용원근무기간에 대한 사원퇴직금지급률에 의하여 산정한 퇴직금지급일수를 뺀다), 위와 같이 산정한 퇴직금지급일수를 합하여 전체 퇴직금지급일수를 산정한 후, 여기에 퇴직 당시의 평균임금을 곱하여 퇴직금의 액수를 산정함이 옳다. 이와 같이 해석하는 것이 지금까지의 대법원 판례(1975.7.22.선고 74다1840 판결； 1977.9.28. 선고 77다1137 전원합의체판결)와도 부합하는 것이고, 취업규칙의 법규범성(대법원 1977.7.26. 선고 77다355 판결 참조)에 비추어 퇴직급여규정 등에 특별히 정함이 있는 경우를 제외하고는 이미 제공된 근로형태에 따라 이루어진 퇴직금의 권리내용이 그 후에 변경된 취업규칙이나 퇴직급여규정 등에 의하여 소급하여 변경되지 아니한다는 취업규칙의 적용범위에 관한 당원의 견해(대법원 1990.11.27. 선고 89다카15939 판결)와도 부합한다.

F. Even if a trade union was not established at the time of disadvantageous change in the rules on retirement benefits, the workplace is scattered across the country, and it is virtually impossible to obtain the consent of all employees by collective decision-making method within a short time due to the number of employees up to 1,893, and it was subject to deliberation and resolution by the board of directors in accordance with the company's articles of incorporation and the regulations on the board of directors, this is merely a procedure to undergo from the employer's perspective.

G. Even if the rules of employment had been amended disadvantageously to the employee and the company trade union comprised of retired workers or workers did not raise any objection to the amendment of the rules of employment after the amendment, and the above amendment has been implemented as it is, such circumstance alone cannot be readily concluded that the employees have ratified the above amendment after the amendment or agreed implicitly.

H. The case affirming the judgment below holding that even if the circumstances leading up to the amendment of the retirement benefit provision disadvantageously to the company's retirement benefit provision were in accordance with the government's policy to correct the sensibility caused by higher retirement benefit provision than the general public officials or other corporations and to avoid the proper operation of government-invested institutions, it does not seem that it is reasonable under the socially accepted social norms without the consent of the worker group.

(i) Where a trade union established after a provision on retirement benefits was amended disadvantageously without the consent of the workers group, concluding a collective agreement with the company and the trade union established after the amendment was made, the fact that the rules of employment in force were invalid and that “matters not specified in the agreement” in the Addenda to the collective agreement ought to comply with the relevant statutes and practices cannot be deemed as ratified the amendment of the provisions on retirement benefits

(j) If the lower court asserted that the retirement allowance should be calculated in accordance with the retirement allowance payment provision after the amendment, and the assertion that the average wage under the retirement benefit provision before the amendment differs from that under the Labor Standards Act, is a new fact that is asserted only before the final appeal, this cannot be a legitimate ground for appeal.

(k) Family allowances, if the company is liable to pay to the company and have been uniformly paid to workers meeting certain requirements, constitute wages, not voluntary and mutually advantageous benefits, which are of the nature of remuneration for work.

(a)(c) Article 28(1)(f)(h) of the Labor Standards Act; Article 95(j) Article 393 of the Civil Procedure Act; Article 18 of the Labor Standards Act;

[Plaintiff-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellant-Appellee-Appellant-Appellant-Appellee-Appellant-Appellant-Appellant-Appellee-Appellant-Appellant-Appellant-Appellee-Appellant-Appellant-Appellee-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant-Appellant 197, 1985, 1982, 1997, 1997, 1997, 1997, 1997, 1997, 1949, 197, 1999, 197, 197, 197, 197, 199, 199, 197, 197, 199, 197, 197, 209, 197, 199.

Plaintiff

Korea National Housing Corporation, Attorneys Kim Jong-jin et al., Counsel for the defendant-appellant

Seoul High Court Decision 92Na45263 delivered on April 23, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal and supplemental appellate brief are also examined as supplement in case of supplemental appellate brief not timely filed.

1. On the first ground for appeal

A. Examining the reasoning of the judgment of the court below in light of the records, the court below, based on the evidence cited in the judgment, found the plaintiff employed the plaintiff as a daily and temporary employee at the ○○○○ Housing Management Office under the defendant Corporation on May 24, 1965 and worked in the form of re-employment with an employment period fixed every year from December 31, 197 to December 31, 197, as a cleaning department or an organization organization in charge of boiler room. However, the court below retired from office as a temporary employee on December 31, 197, and was employed as a regular technical employee on January 1, 1978 and continued to engage in the same duties as the previous organization organization and continued to serve on October 31, 198, and recognized the fact that the plaintiff retired from office on October 31, 198. There is no error in the rules of evidence in violation of the grounds for appeal. The part related to this point is without merit.

B. The above requirement is satisfied if a worker continues to work for at least 4,5 days in a month and for at least 15 days in a month (see Supreme Court Decision 78Da2089, Jan. 30, 1979). In this case, the continuity of employment relationship is not recognized only when the contents of work for the one-time worker are identical or similar to the contents of work for the one-time worker as a full-time worker. The evidence in the ground of appeal No. 2-1 through 95 (each work table) pointed out in the ground of appeal is unclear, but it is not clear that the plaintiff has worked for the whole period of the worker as a full-time worker. However, even if it is based on these evidence, the plaintiff continued to work for the institution's bulletin in 1973, from 1974 to the end of 1977, and the part of the court below's judgment that the plaintiff had worked for at least 197 days in each year prior to the end of 197.

C. In form, even if a worker is employed as a full-time employee, if the worker is still employed without additional employment (see, e.g., Supreme Court Decision 76Da1812, Sept. 14, 1976; Supreme Court Decision 83Meu657, Aug. 19, 1986). In a case where a labor contract is renewed simultaneously with the termination of the labor contract or where a labor contract is repeatedly concluded on the same condition, the number of years of continuous employment shall be calculated by aggregating the renewed or repeated contract period (see, e.g., Supreme Court Decision 74Da1625, Jun. 24, 1975; 78Da1753, Apr. 10, 1979); where a worker is employed as a temporary employee and has been employed as a full-time employee without additional employment period and has been employed as a full-time employee (see, e.g., Supreme Court Decision 2007Da1687, Apr. 10, 19797).

Article 28(1) of the Act provides that the method of calculating retirement allowances in cases where there are changes in the position during the middle of the period of continuous service and there are differences in the rate of payment of retirement allowances according to the class of such position, unless it violates the provisions of Article 28(1) of the Labor Standards Act (hereinafter “Act”), it shall be lawful. However, as in this case, if there are no separate provisions in the rules of employment or collective agreement with regard to the method of calculation, the method should be derived through the interpretation of the rules of employment and collective agreement with regard to the calculation of retirement allowances at the place of business, and Article 28(1) of the Act shall be the most important standard in this process. However, Article 28(1) of the Act provides that “An employer shall establish a system that can change the rate of payment of retirement allowances for not less than 30 days for each year as retirement allowances without any change in the legal relationship with the retirement allowances at the time of change in the status of two preceding years, the rate of payment of retirement allowances at the time of continuous service shall be calculated based on the average wage rate of two preceding years.

Therefore, even if a temporary employee is divided into a temporary employee and a regular employee and the regular employee is not provided with any other retirement allowance rules or at all, if a worker retires after a temporary employee changes from a temporary employee to a regular employee, the number of retirement allowances should be calculated by multiplying the average wage of the regular employee as at the time of retirement by the rate of payment paid to the regular employee, which is the form of the provision of employment at the time of retirement, with respect to the whole continuous service, including the period of service as a temporary employee and the period of service as a regular employee, (see Supreme Court Decision 80Da3263, Sept. 8, 1981; Supreme Court Decision 81Meu137, Apr. 13, 1982; Supreme Court Decision 86Meu1347, Oct. 28, 1986). Therefore, the above Supreme Court Decision 15Da1647, Feb. 22, 1994, which has different opinions, shall be modified by the Supreme Court Decision 16Da15464, Feb. 2, 1994.

According to the facts acknowledged by the court below, since the plaintiff was employed as a daily temporary employee on May 24, 1965, as seen above, the plaintiff continued to work for the same conditions each time when the term of employment contract expires for one year by the end of January 1, 1977, and changed to a regular position on the same condition. In the case of defendant Corporation, a single-level temporary employee shall pay a retirement allowance for a daily temporary employee and a single-level retirement allowance for a regular employee shall be paid. Thus, the plaintiff's continuous employment period shall be the total period from the time when the plaintiff's continuous employment period was first employed as a daily temporary employee until the retirement period as a regular employee. Thus, the decision of the court below that calculated the plaintiff's retirement allowance according to the retirement allowance payment rate applied to regular employees as of the post at the time of retirement is just under the opinion of the court below, and there is no error in the misapprehension of legal principles as to the calculation of retirement allowances, among the grounds for appeal No. 1, 1978.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below's amendment to the retirement benefit provision of defendant Corporation is effective for the plaintiff who did not have been established at the time of the amendment of the above provision, and it is virtually impossible to obtain the consent of the whole workers by collective decision-making method within 1,893, and it was not possible to obtain the consent of the board of directors in accordance with the defendant's articles of incorporation and the regulations of the board of directors. Even if the amendment was made on January 1, 1981, the contents of the above provision are to lower the retirement benefit payment rate which serves as the basis for the calculation of the retirement benefits for employees, to reduce the amount of monthly salary as a result of reducing the scope of monthly salary, and to reduce the amount of retirement benefits paid to employees, and without the consent of the employees' collective decision-making method, the above amendment did not constitute a violation of the above provisions of the rules of employment since the amendment did not have any disadvantage to the employee or the above provisions of the rules of employment since it did not have any explicit consent to the amendment after the amendment.

In addition, the fact that the rules of employment in force by the defendant public corporation trade union established after the amendment without the consent of the workers' group are invalid, and that the rules of employment in force are concluded with the defendant public corporation and the collective agreement, and that matters not specified in the supplementary agreement to the collective agreement shall comply with the relevant Acts and subordinate statutes and practices cannot be deemed to have ratified the amendment of the rules of retirement benefits in force (see Supreme Court Decision 92Da32357 delivered on November 27, 192), and that the amendment of the rules of employment in question was made in accordance with the items of the evidence No. 28-1 through No. 4, and No. 29-1 through No. 29 of the evidence No. 28-28, the contents of the rules of employment in question are matters related to duty, monthly leave, holidays, etc. which are not related to retirement benefits, and thus it cannot be deemed that the amendment of the rules of employment in question was ratified by the ratification of the above rules of employment in the grounds for appeal.

3. On the third ground for appeal

The defendant merely asserted that the plaintiff's retirement allowance should be calculated in accordance with the retirement allowance provision after the amendment, and that the average wage under the retirement benefit provision before the amendment is different from that under the Labor Standards Act, has only been asserted in the final appeal, and the court below did not have asserted it. Thus, this cannot be a legitimate ground for appeal (see Supreme Court Decision 92Da24325 delivered on September 25, 192).

In addition, according to the records, family allowances pointed out in the grounds of appeal are also liable to pay to the defendant, and the fact that the family allowances are uniformly paid to the worker meeting certain requirements is not voluntary and mutually advantageous benefits, and they constitute wages, which are of the nature of the consideration for labor (see Supreme Court Decision 84Meu1409, Feb. 24, 1987). Therefore, the part of the grounds of appeal that the above family allowances do not constitute wages under the Labor Standards Act is not reasonable.

4. Therefore, the appeal shall be dismissed, and the costs of appeal shall be borne by the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion in regard to partial judgment by Justice Kim Jong-soo, Justice Jeong-ho, and Justice Park Jong-young.

5. In so determining, we do not agree with the Majority Opinion as to “1-C” of the Majority Opinion, in so doing, for the following reasons.

In this case, if there is a change in the number of employees during the continuous service period in a workplace where the rate of payment of retirement allowances is different according to the classification of employees, and there is no provision in the rules of employment or collective agreement with regard to the method of calculation of retirement allowances due to the change in the classification of employees, it cannot be deemed that the change of the number of employees with respect to retirement allowances already made before the change in the classification of employees and the rights and obligations of employees naturally applies to the change in the classification of employees. In this case, the number of employees with respect to the continuous service period prior to the appointment of regular employees is calculated according to the rate of payment of retirement allowances under Article 28(1) of the Labor Standards Act or the simple rate of payment under Article 28(1) of the Labor Standards Act (if there is no provision regarding retirement allowances applicable to temporary employees, the number of employees after the appointment of regular employees shall be calculated according to the rate of payment of retirement allowances for regular employees and the number of employees calculated by the rate of payment of retirement allowances for the entire employees' service period shall be calculated by adding the number of retirement allowances calculated as above to 3194.319.

Such interpretation is consistent with the Supreme Court precedents so far (see, e.g., Supreme Court en banc Decisions 77Da1137, Sept. 28, 1977; 77Da1135, Jul. 26, 197) that deeming retirement benefits as retirement benefits as follow-up wages, and in light of the legal norm of the rules of employment (see, e.g., Supreme Court en banc Decision 77Da355, Jul. 26, 197), it is consistent with the opinion of the party members regarding the scope of application of the rules of employment that the contents of retirement benefits already provided by the rules of employment are not retroactively modified by the rules of employment or the rules of retirement benefits, etc. (see, e.g., Supreme Court Decision 89Meu15939, Nov. 27, 190).

As stated in the majority opinion, applying the retirement allowance rate for the former continuous service period to the former continuous service period is deemed as providing labor in the form of not actually provided for the former continuous service period, and it cannot be reasonable to deem the payment rate for the retirement allowance to be agreed upon by the retirement allowance rate for the current continuous service period. In addition, we cannot agree with the majority opinion that it conforms to the purport of Article 28 (1) of the Labor Standards Act.

In addition, Article 28(1) of the Labor Standards Act provides that "not less than 30 days' average wage for each year of continuous employment" shall be paid with respect to the payment of a retirement allowance. Thus, unless the retirement allowance rate falls short of this, the Labor Standards Act does not prohibit the payment of a retirement allowance differently in cases where the retirement allowance rate is different from that of a worker in a different workplace, such as this case, and the payment rate of a retirement allowance is different in accordance with the current category of employment, and it cannot be said that such interpretation goes against the purport of Article 28(1) of the Labor Standards Act.

When there is a change in the relationship of rights, all of the purpose of the new legal relationship and the legal stability of the legal relationship of the king is natural in light of the ideology of the law.

If the provision of retirement benefits to be applied varies due to a change in the form of provision of employment, the total period of continuous employment should be added, and the number of days of payment of retirement allowances, average wages, etc. according to the new form of provision of employment in the future will coincide with the purpose of changing the form of provision of employment between the parties. However, the number of days of payment of retirement allowances according to the past form of provision of employment can vary depending on the case of the employee or the user's interest in favor of the employee. Thus, unless the provision of retirement benefits or the intent of the parties is unclear, the legal stability of the parties should be guaranteed by applying the principle of non-payment in accordance with the general theory of law.

For this reason, we cannot agree with the majority opinion. The opinion expressed in the majority opinion is to be modified, and the opinion expressed in the above Supreme Court Decision 93Da11654 Decided February 22, 1994, which is to be modified by the majority opinion, should be maintained as it is. Therefore, the judgment of the court below which calculated the plaintiff's retirement allowance according to the retirement benefit payment rate applicable to the regular employees who are the regular employees who are the current employees at the time of retirement, which is the whole continuous service period of the plaintiff, shall be deemed to have erred by misapprehending the legal principles on

Justices Park Jong-young (Presiding Justice) of the Supreme Court of the Republic of Korea (Presiding Justice)