Whether bonuses paid every six months shall be excluded in full from the calculation of the basic average wage for the calculation of retirement allowances.

While the remuneration regulations of the International Tourism Corporation stipulate the basic period of average wage calculation as three months before the date on which the reason for calculating the amount arises, a bonus allowance is paid at least once in six months in consideration of the work for the six-month period prior to the month of payment, if the employees of the said public corporation received bonus allowances during the three-month period prior to his/her retirement and such bonus allowances are paid periodically twice every six months, it is reasonable to include only the corresponding amount of the bonus allowances in the calculation of the average wage, which is the basis for the calculation of the retirement allowance for the employees who take charge of the said work.

Plaintiff 1 and 17 others, Counsel for the defendant-appellee-appellant

International Tourism Corporation (Attorney Jeon Young-soo, Counsel for defendant-appellant)

Seoul High Court Decision 76Na9 delivered on May 19, 1976

The appeal shall be dismissed. The costs of appeal shall be borne by the defendant.

The grounds of appeal No. 1 by the defendant's attorney are examined.

According to the reasoning of the first instance judgment cited by the lower court, the lower court determined that the total amount of remuneration which forms the basis for calculating the average wage, which is the standard amount for calculating the retirement allowance, refers to the amount including the salary and other allowances, and that bonus allowances are also stipulated in one kind of allowance. In so doing, the lower court determined that the bonus allowance should be included in the calculation of the total amount of the retirement allowance of the Defendant Corporation, and the Defendant Corporation, in fact, has paid a certain amount of bonus allowance each time to all its employees as the remuneration for work for six months between June and December and six months at the time of the establishment of the Defendant Corporation each year, and in particular, it is reasonable to view the lower court’s determination that the bonus allowance is not paid every three months prior to retirement, based on the premise that the bonus allowance is paid every six months prior to the date of calculating the average wage, and that the bonus allowance is not paid every six months prior to the date of calculating the total amount of the retirement allowance of the Defendant Corporation, based on the premise that the allowance is paid every six months prior to the date of calculating the calculation.

The second ground of appeal is examined.

As seen above, the argument that the bonus of the Defendant Corporation should be excluded from the calculation of average wage because it is merely a mutually advantageous and reward payment, is without merit in light of the interpretation of the concept of average wage as stipulated in the remuneration regulations and the retirement allowance payment regulations of the Defendant Corporation, or in the case of a kind of wage regularly paid twice a year, the lower court’s judgment does not have pride and materials that should not be determined on the basis of the difference between the payment date and the payment rate. The argument is groundless.

The grounds of appeal No. 3 are examined.

Even if the retirement amount actually paid by the defendant corporation to the plaintiffs by adopting a progressive rate based on the number of years of employment as argued by the defendant corporation exceeds the maximum retirement allowance under Article 28 of the Labor Standards Act, it is justifiable that the above defendant corporation's refusal to claim the additional retirement allowance does not constitute a reason for refusing to claim the payment of the plaintiffs' additional retirement allowance. The Supreme Court ruling pointing out that the kinds of bonuses of wages, which are the basis for calculating the average wage, are excluded under the relevant provisions of the company, is not appropriate in this case. There is no argument about the Supreme Court precedents.

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

Justices Lee Il-hee (Presiding Justice)