A. The meaning of “where the average wage cannot be determined” under Article 5 of the Enforcement Decree of the Labor Standards Act

(b) Whether the wage paid between the three months immediately preceding the retirement is the basis for the calculation of the average wage in cases where the ordinary case is significantly different due to a special reason;

(c) Method of calculating the average wage, which serves as the basis for retirement allowances, where a worker engages in an act to intentionally increase average wages immediately before his retirement;

A. The phrase that it is impossible to determine the average wage under Article 5 of the Enforcement Decree of the Labor Standards Act shall not be limited to the case where it is technically impossible to calculate the average wage, but it shall also include the case where the calculation of the average wage is considerably inappropriate under the relevant provisions of the Labor Standards Act.

B. The retirement allowance system is aimed at ensuring the ordinary life of workers as before. Thus, if a ground for the payment of retirement allowances is the basis for the calculation of the amount to be paid to the worker when the ground for the payment of retirement allowances occurred, the "wages paid to the worker during the three months prior to the date on which the ground occurred" is the basis of the calculation of the average wage even if it is significantly less or more than the ordinary case due to special reasons, it is not against the fundamental purpose of the system to guarantee the ordinary life of workers as before their previous living.

C. The average wage is the basis for calculating various kinds of wages, such as retirement allowances for workers, and the purport of the above provisions is to guarantee workers’ livelihood. As such, in principle, the average wage shall be calculated based on the calculation basis, as it is true that the worker’s ordinary living wage is calculated. This is the amount equivalent to the average wage that can be calculated if the worker did not intentionally engage in any act to increase the average wage. If the employee’s intentional act makes it impossible to calculate the average wage in accordance with the relevant provisions of the Labor Standards Act, it shall be calculated based on the average wage for the immediately preceding three months, in light of the purport of the provisions of the Labor Standards Act, which provides that the period immediately before his retirement shall be the most well reflects the ordinary living wage, and thus, the average wage, which serves as the basis for the retirement allowance, is the amount equivalent to the amount calculated based on the wages between the three immediately preceding months, which is calculated based on the calculation basis of the above average wage.

A. Article 5(b) of the Enforcement Decree of the Labor Standards Act; Articles 19 and 28(1) of the Labor Standards Act

B. Supreme Court Decision 90Nu4683 decided Nov. 9, 1990 (Gong1991, 35). Supreme Court Decision 90Nu2772 decided Apr. 26, 1991 (Gong1991, 1524) 93Nu14936 decided Dec. 28, 1993

Seoul High Court Decision 200Na1448 delivered on August 1, 200

Hanyang Transportation Corporation

Seoul Civil District Court Decision 93Na25973 delivered on December 30, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that wages for taxi drivers of the defendant company are composed of achievements determined based on ordinary wages, night work allowances, such as basic pay, work allowances, and continuous service allowances, and other allowances, and the amount of achievements determined based on the monthly wage paid according to the number of years of service, and the monthly wage for taxi drivers, and that when the plaintiff obtains a license upon filing an application for a personal taxi transport business license, he would intentionally retire before the end of August 1992, and as a result, he intentionally deposits a large number of transportation income in the defendant company over normal wage during the three months before his retirement in order to improve the average wage which is the basis for the calculation of retirement allowances, and as a result, the monthly wage from June 1, 192 to August 8 of the preceding three months has increased by about 73% compared to the monthly average wage for the five months prior to his retirement, the fact-finding of the court below can be justified in light of the records.

2. The average wage under the Labor Standards Act refers to the amount calculated by dividing the total amount of wages paid to a worker during the three-month period prior to the date on which a cause for calculating the average wage occurred by the total number of days in the said three-month period. However, if the calculated amount is less than the ordinary wage, the ordinary wage amount shall be the average wage (Article 19(1) and (2) of the Enforcement Decree of the Labor Standards Act, and Articles 2 through 4 of the Enforcement Decree of the Labor Standards Act provide that the special rule on the average wage shall be again provided, and Article 5 of the Enforcement Decree of the Labor Standards Act provides that if it is impossible to determine the average wage pursuant to the above Labor Standards Act and the Enforcement Decree thereof, the average wage shall be determined by the Minister of Labor. The provision that the average wage under Article 5 of the Enforcement Decree of the Labor Standards Act

However, since the retirement allowance system aims to guarantee the ordinary life of workers as before. Thus, if the "wages paid to the worker during the three-month period prior to the date on which the cause occurred" which is the basis of the calculation of the amount to be paid when the cause for the payment of the retirement allowance occurred is significantly less or more than ordinary cases due to special reasons, it cannot be said that it goes against the fundamental purpose of the system that guarantees the ordinary life of workers like before (see, e.g., Supreme Court Decision 90Meu4683, Nov. 9, 190).

Therefore, considering that the above intentional act of the plaintiff recognized by the court below is valid, calculating the average wage based on the wage paid to the worker during the three months before the date on which the intended reason for retirement occurred, is obviously contrary to the fundamental purpose of the retirement allowance system, and thus, it is not allowed under the principle of good faith. Accordingly, in this case, the calculation of the average wage is considerably inappropriate under the relevant provisions of the Labor Standards Act.

Therefore, with respect to the calculation of the average wage in such a case, since there is no provision on the standard or method under Article 5 of the Enforcement Decree of the Labor Standards Act, the Minister of Labor is still unable to calculate the average wage under the conditions as prescribed by the Ordinance of the Ministry of Labor, since there is no provision on the standard or method of the calculation of the average wage, it is necessary to guarantee the worker's livelihood. As such, the average wage as a basis for the calculation of the amount should be the basic principle, in principle, the actual calculation of the employee's ordinary living wage (see, e.g., Supreme Court Decision 90Nu2772, Apr. 26, 191). This can be deemed as the amount equivalent to the average wage that can be calculated if the employee did not intentionally increase the average wage, and in this case, if the average wage cannot be calculated under the relevant provisions of the Labor Standards Act due to the plaintiff's intentional act, the period before his retirement is the most reflecting of the average wage before his retirement, and the purpose of the above provision is to exclude the average wage from the period before his retirement.

Therefore, it is justifiable that the court below calculated the average wage, which serves as the basis for the calculation of the plaintiff's retirement allowance in this case, based on the three-month period from March 1992 to May 3, 199, and there is no error of law by misunderstanding the legal principles as to the calculation of retirement allowance and average wage, which affected the conclusion of the judgment. The argument is without merit.

3. 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 Lee Jae-soo (Presiding Justice)