[1] The standard for determining whether money or goods paid to a worker is subject to the calculation of average wages

[2] In a case where Gap sought a retirement allowance, etc. against Eul limited liability company, and the court below acknowledged the fact that Eul transferred money to Eul for a certain period, but the entire amount does not constitute the ordinary wage that serves as the basis for the calculation of average wage, and instead, it did not recognize the amount of retirement allowance claimed by Gap on the ground that there was no other evidence to specify the ordinary wage for that period, the case holding that the court below erred by misapprehending the legal principles, which rejected Eul's claim for retirement allowance as part of the average wage by considering whether the money Gap received from Eul company constitutes an average wage, although Gap should have decided whether it constitutes a work price or not, although it should have decided whether it constitutes an average wage

[1] Articles 8 (1) and 9 of the Guarantee of Workers' Retirement Benefits Act, Article 2 (1) 5 and 6 of the Labor Standards Act / [2] Articles 8 (1) and 9 of the Guarantee of Workers' Retirement Benefits Act, Article 2 (1) 5 and 6 of the Labor Standards Act

[1] Supreme Court en banc Decision 97Da5015 Decided May 12, 1999 (Gong199Sang, 1144)

Plaintiff (Counterclaim Defendant) (Law Firm Jeong, Attorneys Kang Shin-han et al., Counsel for the plaintiff-appellant)

Podo Alcoholic LLC (Attorney Park Young-ho, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2017Na72256, 72263 decided May 29, 2018

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) regarding the part of the claim for retirement allowance in the main lawsuit is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The remaining appeal is dismissed.

The grounds of appeal are examined.

The lower court acknowledged the fact that the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) remitted money to the bank account in the name of the Nonparty from June 18, 2012 to February 8, 2013, to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”). However, on the grounds stated in its reasoning, the lower court rejected part of the Plaintiff’s claim for retirement allowance by calculating the retirement allowance based on the ordinary wage that the Defendant did not dispute on its scope, on the ground that the entire money cannot be deemed as the ordinary wage that constitutes the basis for calculating the average wage, and there was no other evidence to specify the ordinary wage during the above period.

Where a worker retires, the employer shall pay the retirement allowance within 14 days from the date on which the cause for such payment occurred (Article 9 of the Guarantee of Workers' Retirement Benefits Act), and the calculation of the retirement allowance shall be the average wage for not less than 30 days per year for the continuous employment period of the worker (Article 8(1) of the same Act). The average wage refers to the amount obtained by dividing the total amount of wages paid to the worker during the three months preceding the date on which the cause for such calculation occurred by the total number of days in the relevant period (Article 2(1)

Even if money and valuables paid to a worker was made according to a collective agreement, employment rules, labor contract, etc. or an employer’s policy, if the occurrence of the obligation to pay is directly related to, or closely related to, the provision of labor, i.e., wages subject to the provision of labor, regardless of their titles, shall be deemed as wages subject to the calculation of average wages (see Supreme Court en banc Decision 97Da5015, May 12, 199, etc.).

As above, the wage, which serves as the basis for calculating the employee’s retirement allowance, is the average wage as seen above, and the lower court should have determined whether the money received from the Defendant constitutes an average wage by examining whether the amount was the remuneration for labor. Nevertheless, the lower court rejected part of the Plaintiff’s claim for retirement allowance that is confused with ordinary wages, not the average wage, which serves as the basis for calculating the retirement allowance. In so doing, the lower court erred by misapprehending the legal doctrine on the average wage, or by failing to exhaust all necessary deliberations, and thereby adversely affected the conclusion of the

Meanwhile, the Plaintiff appealed on the entire portion of the lower judgment against the Plaintiff, but on February 2013, the Plaintiff did not state the grounds for appeal in the petition of appeal and did not state the grounds for appeal in the appellate brief.

Therefore, the part of the judgment of the court below against the plaintiff as to the claim for retirement allowance in the main lawsuit is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Jo Hee-de (Presiding Justice)