In applying the retirement allowance rules applicable to the largest number of workers pursuant to paragraph (2) of the Addenda of the Labor Standards Act (Law No. 3349, Dec. 31, 1980), where the provisions concerning basic wages in the relevant retirement allowance rules are not applicable,

Article 28(2) of the Addenda of the Labor Standards Act (Act No. 3349 of Dec. 31, 1980) applies to employees from Apr. 1, 1981, the new retirement allowance provision applicable to the Korea Coal Corporation which is the largest number of employees in the calculation of the retirement allowance in accordance with the purport of Article 28(2) of the same Act. However, employees of the Korea Coal Corporation are paid holiday allowances not paid to employees among the various allowances paid by employees of the Korea Coal Corporation, while the provisions concerning the basic wages of the new retirement allowance provision concerning employees cannot be applied to employees in a way that the allowances paid to employees and employees are inconsistent with each other, such as technical allowances paid by employees and mine allowances not paid by employees. Accordingly, the provisions concerning the basic wages of the new retirement allowance provision concerning employees cannot be applied to employees in a way that there is no provision concerning the calculation of the retirement allowance applicable to the continuous service period after Apr. 1, 1981.

Article 28(2) of the Labor Standards Act (Law No. 3349, Dec. 31, 1980); Article 28(2) of the Addenda of the Labor Standards Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Do-young and 1 other, Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-

Plaintiff 1 and six others

[Defendant-Appellee] Korea Coal Corporation (Attorney Gyeong-dae, Counsel for defendant-appellee)

Seoul High Court Decision 91Na53267 delivered on June 3, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant Corporation paid at least 50% of the basic salary each time to all employees at least twice a year, and held that it is included in the average wage as wages under the Labor Standards Act, in light of the form of payment and the terms of payment. If the facts are as determined by the court below, the court below's decision that the above physical training expenses are included in the average wage is just and there is no error in the misapprehension of legal principles, such as theory of lawsuit. There is no ground to argue.

2. Prior to the amendment of the former retirement allowance rules enacted by agreement between the defendant and the labor union, the appeal that the defendant excluded the physical training expenses from the average wage for calculating retirement allowances by agreement between the labor and management is not asserted by the court below (or, in case of the former retirement allowance rules on December 11, 1990, the defendant alleged that the basic wage for calculating retirement allowances was the average wage under the Labor Standards Act, but in case of the new retirement allowance rules, the basic wage for calculating retirement allowances was listed as the item item and excluded the physical training expenses). It cannot be a legitimate ground for appeal. However, even if the above determination of the court below was asserted that the retirement allowance rules on employees were excluded from the basic wage for calculating physical training allowances by the amendment of January 1, 1981, the court below did not err in the misapprehension of the facts of the rules on retirement allowances on January 1, 1981, since the amendment of the retirement allowance rules on employees was invalid because it did not change to the employees' consent, and thus the above amendment was not justified.

3. According to the reasoning of the lower judgment, the lower court: (a) it is clear that the new rules on retirement allowances of Defendant Corporation classify employees as employees and labor members (including high-level employees); (b) it violates Article 28(2) of the Labor Standards Act in terms of the number of days of payment of retirement allowances; (c) it did not change the rules on retirement allowances to ensure that the Defendant Corporation conforms to the Labor Standards Act until March 31, 1981; (d) approximately 800 employees among the employees of Defendant Corporation as of March 1981, about 12,00 employees; and (e) approximately 800 employees accounts for the largest number of the employees of Defendant Corporation; and (e) determined that the basic rules on retirement allowances of Defendant Corporation were not applicable to the employees who were provided with retirement allowances under Article 28(2)97 of the Labor Standards Act (see, e.g., Supreme Court Decision 90Da198196, Apr. 1, 1981).

4. The facts that the plaintiffs received retirement benefits without raising an objection at the time of retirement do not constitute an unfair claim in violation of the good faith principle by asserting the invalidity of the revised retirement allowance provision on October 23, 1990 after the retirement and claiming the additional payment of retirement allowances. Therefore, the argument that each of the claims of the plaintiffs in this case violates the good faith principle is without merit.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-sik (Presiding Justice)