Whether the wage provision that deducts bonus allowances from the average wage which is the basis for the calculation of retirement allowances violates the Labor Standards Act Article 28.

Article 28 of the Labor Standards Act provides that the minimum limits of retirement allowances to be paid by an employer to a retired employee is set, so if the amount of retirement allowances exceeds the minimum limits guaranteed by the Labor Standards Act even though the amount of retirement allowances was deducted from the average wage calculation basis, it cannot be said that the wage provision violates the Labor Standards Act.

Articles 18, 19, and 28 of the Labor Standards Act

Seoul High Court Decision 72Na2470 delivered on February 1, 1973

Plaintiff 1 and 24 others

Korea Resources Mining Corporation

Seoul Central District Court (72 Gohap3547) in the first instance trial

The part of the judgment of the court below against the plaintiffs 1 through 11 and the part against the plaintiffs other than the above plaintiffs against the defendant shall be revoked, and each of the above plaintiffs' claims against the revocation part shall be dismissed.

All the costs of lawsuit shall be borne by the plaintiffs in the first and second instances.

The defendant shall pay to the plaintiff 1 59,840 won, gold 81,312 won to the plaintiff 2, gold 131,775 won to the plaintiff 3, gold 104,976 won to the plaintiff 12, gold 252,840 won to the plaintiff 13, gold 86,322 won to the plaintiff 14, gold 474,259 won to the plaintiff 5, gold 162,240 won to the plaintiff 5, gold 23,310 won, gold 245 won to the plaintiff 7, gold 249,7510 won to the plaintiff 12, gold 250 won to the plaintiff 15, gold 250 won to the plaintiff 2, 245 won to the plaintiff 14, 251, gold 250 won to the plaintiff 10, 149, 2519, gold 17, 157, 214, 17

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

If the contents of evidence Nos. 1-2 (the new document and details), evidence Nos. 2-1 through 9 (the official document and contents of statement sent), evidence Nos. 1-2 (the organization agreement), and evidence Nos. 2-1 through 4 (the benefit provision) are integrated into the whole purport of testimony and pleading of the witness No. 1, the plaintiff No. 11 and the deceased non-party No. 2, 3, and 4 as stated in the annexed Table No. 1 and retire temporarily in the annexed Table No. 2. The above plaintiffs No. 11 and the deceased were employed for the defendant company at each time listed in the annexed Table No. 1-2, and the above defendant company did not receive bonus and allowance No. 3 as stated in the annexed Table No. 1-2, and the average wage as stated in the attached Table No. 3 were continuously paid to the defendant company once every three months other than the basic benefit while in service, and the amount of bonus and allowance which were paid to the non-party No. 1 and the defendant No. 3 were paid for the same year. 1.

The plaintiffs asserted that the above bonus is paid by the defendant company as a kind of wages and should be included in the calculation of the average wage which is the basis of the retirement allowance, and that the remaining amount of the retirement allowance already received from each of the retirement allowances calculated by including it in the calculation of the average wage is claimed. As the plaintiffs' claim in this case is not disputed that the average wage which is the basis of the retirement allowance regulations in the defendant company is not included in the concept of bonus, so it is not erroneous. Thus, the plaintiff 1 and the plaintiff 1 and the non-party 3 including the above non-party 2 are argued to be erroneous. According to the above Articles 6 and 6, the basic salary is divided into the basic salary and the provisional salary, and the basic salary is further divided into the main salary and the provisional salary. According to Article 16 of the above salary regulations, the defendant company should pay the bonus to the employees according to the fixed amount by class and the standard for calculating the amount of the allowance under the Labor Standards Act, and it is reasonable to separately include the above 6th wages in the calculation of the production allowance and the average salary.

However, according to Article 28 of the Labor Standards Act, an employer shall establish a system under which an employee can pay an average wage of not less than 30 days for each year of continuous employment as a retirement allowance. The average wage refers to the average wage under Article 19 of the same Act, and it is clear that the wage which is the basis for calculating the average wage is included in the bonus allowance in the claim of the Plaintiffs. As such, in light of the interpretation of the Labor Standards Act, whether the above provision violates the Labor Standards Act as seen above or not. The purpose of Article 28 of the Labor Standards Act is to determine the minimum limit of the retirement allowance which the employee should pay to the retired worker, and even if the employee company calculates the retirement allowance without taking the allowance as the basis for calculating the average wage, if the amount of the retirement allowance falls short of the minimum limit guaranteed by the above Labor Standards Act, it is clear that the above provision violates the Labor Standards Act as stated in the attached Table 2 of the Labor Standards Act, even if the amount of the retirement allowance falls short of the retirement allowance calculated based on the average wage calculation rate as stated in the attached Table 4.

Therefore, the above payment provision on the payment of retirement allowances of the defendant company would be valid, and as long as the defendant company has already paid the total amount of the retirement allowances in accordance with the above payment provision, the plaintiffs' claims in this case shall be dismissed without any further consideration. Accordingly, the decision of the court below as to the plaintiffs 1 through 11 and the remaining plaintiffs except the above plaintiffs shall be revoked, and the costs of lawsuit shall be borne by the plaintiffs who have lost them, and it is so decided as per Disposition.

Judges’ advice (Presiding Judge) and Kim Young-jin’s high class