[1] Whether Article 28(2) of the former Labor Standards Act applies mutatis mutandis under Article 128 of the former Seafarers Act, and it can be interpreted as prohibiting the discrimination between the seafarer and the employee who is not the seafarer in one business (negative)

[2] The scope of wages subject to calculation of average wages

[1] The Seafarers' Act has a significant difference between the concept of wages, criteria and method of calculation of retirement allowances. This is derived from the application of the Seafarers' Act to regulate the labor relations of seafarers in a special environment because the Seafarers' Act has been isolated for a long time and is ordinarily exposed to inherent maritime risks, such as sinking and stranding, while running a certain life together with a moving vessel. Unlike the special characteristics of labor relations of seafarers, the Seafarers' Act defines only money paid to seafarers as wages, the amount of wages cannot be calculated as average wages under the Seafarers' Act, as well as the amount of money paid to the seafarers cannot be calculated as wages under the Seafarers' Act, which is not the basis of the differential amount of wages or basic wages under the Seafarers' Act. Inasmuch as the provisions of the former Seafarers' Act prohibit the establishment of retirement allowances under the Seafarers' Act from calculating and calculating the amount of wages under the Seafarers' Act, the meaning and nature of retirement allowances under the Act should be different from the amount of retirement allowances under Article 381 of the former Seafarers' Act, which is enacted under Article 198 of the Labor Standards Act.

[2] All money and valuables paid by an employer to an employee as eligible for work, which are continuously and regularly paid to an employee, and their payment obligation is crossed out by collective agreements, rules of employment, wage rules, employment contracts, labor contracts, and labor practices, and if it is uniformly paid to an employee meeting certain requirements, it shall be deemed that the wage is subject to the calculation of average wages, regardless of its name.

[1] Article 128 (see current Article 5) of the former Seafarers Act (amended by Act No. 3751 of Aug. 7, 1984), Article 28 (2) of the former Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980) (see current Article 34 (2)), and Article 28 (2) of the Addenda (amended by Act No. 3349 of Dec. 31, 1980) / [2] Articles 18 (see current Article 18), 19 (see current Article 19) of the former Labor Standards Act ( repealed by Act No. 5305 of Mar. 13, 197) (see current Article 19)

[1] Supreme Court Decision 93Da58776 delivered on February 3, 1995 (Gong1995Sang, 1145), Supreme Court Decision 97Da37746 delivered on March 13, 1998 (Gong1998Sang, 1020) / [2] Supreme Court Decision 97Da56235 delivered on February 9, 199 (Gong199Sang, 451 delivered on May 12, 199 (Gong199Sang, 1144), Supreme Court en banc Decision 2001Da53950 delivered on October 23, 201 (Gong201Ha, 2529)

Plaintiff 1 and one other (Law Firm International Law, Attorneys Park Jong-hee et al., Counsel for the plaintiff-appellant)

Hanjin Shipping Co., Ltd. (Law Firm Spah, Attorney Yu-hee, Counsel for defendant-appellant)

Busan High Court Decision 2001Na3658 delivered on December 19, 2001

The part of the judgment of the court below concerning the retirement allowance claim is reversed, and that part of the case is remanded to Busan High Court. The remaining appeals by the plaintiffs are dismissed.

1. Determination on the part demanding a retirement allowance

A. According to the reasoning of the judgment below, the court below acknowledged the facts based on the evidences of employment of the plaintiffs. The rules of employment to be applied to the plaintiffs are the land-based employment rules and the land-based employment rules lawfully amended since January 1, 1972, which were enforced at the time of entry. On the other hand, Article 28 (2) of the former Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980) provides that "the employer shall not have different systems in establishing the retirement rules". Paragraph (2) of the Addenda of this Act provides that "the collective agreement or employment rules at the time of entry into force of this Act are inconsistent with the provisions of Paragraph (2) of Article 28, and that if the plaintiffs did not report to the Minister of Labor, the rules of employment to be applied to the retirement allowances of the plaintiffs 19, which were revised by Act No. 1981, Dec. 31, 198, it should be applied mutatis mutandis to the retirement allowances of the plaintiffs 19.

B. As to the Plaintiffs and Defendant’s grounds of appeal regarding the rules of employment applicable to the calculation of retirement allowances

However, we cannot accept the above judgment of the court below in the following respects.

(1) According to the records, the seafarer's employment rules of the defendant company apply to all seafarers, and the above seafarer's employment rules refer to the crew members and reserve members of the ship owned or operated by the defendant company with respect to the seafarer, and the crew members refer to the seamen working on board, and the reserve members refer to the seamen working on board who are not on duty and who are not on duty but on duty and who are employed in order to provide labor on board the ship for the purpose of receiving wages, and Article 3 subparagraph 1 of the Seafarers' Act provides that "the crew members refer to the persons employed to provide labor on board the ship for the purpose of receiving wages, and are classified into the captain, crew members, and reserve seafarers (referring to those who are not on duty on duty)"

(2) However, the former Seafarers Act, enacted on January 10, 1962 by Act No. 963 (hereinafter referred to as the "former Seafarers Act") provides that "the amount of wages and other remuneration, working hours, food and hygiene expenses, accident compensation, and rules of employment for seafarers shall be determined by the former Seafarers Act for the purpose of maintaining the order of seafarers on board and determining their working conditions within the period of 15 months, and that "the amount of wages and other remuneration, paid to seafarers on board" shall be determined by the former Seafarers Act No. 1463, May, 1962 (the former Seafarers Act, enacted on May 19, 200; Article 137 of the former Seafarers Act, which provides that "the amount of wages and other remuneration, paid to seafarers on board shall be determined by the Act No. 1966, May 1, 200; Article 137 of the former Seafarers Act, which provides that "the amount of wages and other remuneration, paid to seafarers on a monthly basis at least 15-year period, shall be determined by the same Act.

(3) On the other hand, Article 128 of the former Seafarers' Act provides that "Except as otherwise provided in this Act, the provisions of the Labor Standards Act shall apply mutatis mutandis to the seafarer's work," but Article 5 (1) of the Seafarers' Act amended on August 7, 1984 excluded the provision concerning the retirement allowance system under Article 28 of the former Seafarers' Act, which was enforced at the time when the provision of the Labor Standards Act which was applied mutatis mutandis to the seafarer's labor relations,

(4) As seen above, the Seafarers' Act has significant differences with the concept of wages and the criteria and method of calculating retirement allowances. This is derived from the fact that the Labor Standards Act is subject to general labor relations regulation, while the Seafarers' Act is established for a long-term isolated ship and is subject to the regulation of labor relations of seafarers in special circumstances due to being exposed to unique maritime risks, such as sinking and stranding, etc., while living a certain life together with a moving ship. The Seafarers' Act defines the amount of money paid to seafarers as wages, unlike the special characteristics of labor relations of seafarers, the Seafarers' Act defines the amount of money paid to seafarers as wages, and as a result, the amount of money paid to seafarers cannot be calculated as average wages pursuant to the Labor Standards Act, as well as the amount of average wages pursuant to the Seafarers' Act cannot be calculated as wages or basic wages pursuant to the Seafarers' Act as the basis for calculating retirement allowances pursuant to the Seafarers' Act as well as the amount of wages or basic wages pursuant to the Seafarers' Act as the basis for calculating the amount of average wages pursuant to the Labor Standards Act.

(5) Thus, during the period from April 1, 1981 to August 7, 1984 when the Seafarers' Act amended on August 7, 1984, which enforced the prohibition of establishing the differential retirement allowance system under Article 28(2) of the former Seafarers' Act under Article 128 of the former Seafarers' Act, the provision prohibiting the establishment of the differential retirement allowance system under the former Seafarers' Act applies mutatis mutandis to the labor relations of seafarers, and it cannot be deemed that the employment rules should not be different from the retirement allowance system under the former Seafarers' Act, beyond the meaning prohibiting the establishment of the differential retirement allowance system under the former Seafarers' Act. Thus, even if the former Labor Standards Act was enforced on April 1, 1981, it cannot be applied to the seafarers of the defendant company. Accordingly, the employment rules on the retirement allowance of the seafarers of the defendant company under the former Seafarers' Act cannot be applied to the seafarers of the defendant company, and since January 1, 198, it should be applied separately to the retirement allowance of the defendant company.

On or after April 1, 1981, the Supreme Court Decisions 93Da58776 delivered on February 3, 1995 and 97Da37746 delivered on March 13, 198 held that the retirement allowance system of the defendant company under the former Labor Standards Act was the only retirement allowance system applied to the meat of the defendant company by the enforcement of the former Labor Standards Act, on or after April 1, 1981, which held that the retirement allowance system of the defendant company under the employment rules of the defendant company may be applied to the seafarers of the defendant company, shall be amended to the extent that it conflicts with this.

(6) Therefore, the court below's determination that the Rules of Employment of Seafarers shall apply to the retirement allowance of the Defendant company, and thereby accepting part of the plaintiffs' claim for the retirement allowance in this case, constitutes an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles on the prohibition of differential retirement allowance and retirement allowance system under the Seafarers' Act and Labor Standards Act. Thus, the defendant's ground of appeal pointing this out is with merit, and the plaintiffs' ground of appeal

C. As to the plaintiffs' grounds of appeal on calculation of average wages

According to the reasoning of the judgment of the court below, the court below rejected the plaintiffs' assertion that the defendant company's individual pension company's subsidies and the employee company's in-house credit union's investment subsidies should be included in the calculation of the average wage of the plaintiffs, based on the judgment below, the above individual pension company's subsidies and the employee's investment subsidies in credit unions are mutually advantageously paid by the employers for the

However, the above judgment of the court below is hard to accept in the following respects.

If an employer makes a continuous and regular payment to an employee as eligible for work, and the obligation to pay is deleted by collective agreements, rules of employment, wage rules, employment contracts, labor contracts, labor practices, etc. with respect to the payment thereof to an employee, and if it is uniformly paid to an employee meeting certain requirements, it shall be deemed that it is subject to the calculation of average wages, regardless of its name (see Supreme Court en banc Decision 97Da5015 delivered on May 12, 199, etc.).

According to the records, each of the above amounts claimed by the plaintiffs can be seen as having been continuously and regularly paid to all workers and imposed tax by the time they reach the age of earned income, and it is difficult to view that the payment criteria did not depend on the employer's intent, and that it was paid for compensating for actual expenses. In light of the above legal principles, it is sufficient to deem that each of the above amounts is a wage since the obligation to pay to the defendant

Therefore, the court below should further examine the above funds in detail by demanding the plaintiffs to prove the reasons why the defendant company paid them to workers, etc., and determine whether each of the above funds constitutes wages paid to workers including the plaintiffs. However, the court below rejected this part of the plaintiffs' assertion on the ground that there is no proof that the defendant company has a duty to pay each of the above funds, and it constitutes an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles on wages or failing to exhaust all necessary deliberations. Thus, the plaintiffs' ground of appeal pointing this out is with merit.

2. Determination on the part on the claim for wages

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that the defendant company's voluntary return of the total amount of KRW 5,035,129 and KRW 4,275,00 of the wages of the plaintiff 1 to the defendant company for the five-month period from January 1, 1998 to March 31, 199, as well as KRW 10% of the wages of April 1998, and KRW 5,035,129, and KRW 4,275,00 of the wages of the plaintiff 2 to the defendant company for the five-month period from January 1, 1998 to March 31, 199.

In light of the records, the above judgment of the court below is just and acceptable, and there is no error of law in finding a fact by failing to exhaust all the deliberation, and it is difficult to see that the above return of wages was by deception of the defendant company. The plaintiffs' ground of appeal on this point is without merit.

3. Conclusion

Therefore, the part of the judgment below regarding retirement allowance is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiffs are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with Jin Jin-hun, which is written by Justice Song Jin-hun, and is written by the Justice Son Ji-yol who is a plaintiff.