[1] Whether the average wage, which serves as the basis for the calculation of a retirement allowance, is limited to the part which an employer can manage or control the total income earned by an employee (affirmative)

[2] In a case where a taxi driver paid a taxi commission out of transport earnings to the company and directly reverts to his/her own income, whether such personal income is included in the average wage, which serves as the basis for calculating the amount of retirement pay (negative)

[1] The provisions of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) stipulate a mandatory provision ordering an employer to pay a retirement allowance with the employee’s contribution, and the amount of the retirement allowance is always required to be contributed by the employer. In order to ensure predictability in such a contribution, the average wage, which is the basis for the calculation of the retirement allowance, should be deemed to be limited to the part that the employer can manage or control the total income earned by the employee.

[2] In a case where a taxi driver directly reverts to himself/herself the remainder after paying the taxi commission out of daily transportation income, the occurrence of the personal revenue portion or the scope of the amount is not specified, and thus, it cannot be known that the personal revenue of the taxi driver is too much and there is no possibility of management or control. Therefore, the personal revenue of the taxi driver cannot be deemed to be included in the average wage, which is the basis for the calculation of retirement pay.

[1] Article 28 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 28 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

[1] [2] Supreme Court Decision 95Da5733 delivered on March 13, 1998 (Gong1998Sang, 1004) Supreme Court Decision 97Da42410 delivered on April 23, 199 (the same purport) / [2] Supreme Court Decision 87Da570 delivered on March 22, 198 (Gong198, 673) (Gong194 delivered on December 24, 1993)

Plaintiff 1 and four others (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Gangnam Traffic Co., Ltd. (Attorney Kim Jong-he et al., Counsel for defendant-appellee)

Seoul High Court Decision 97Na36288 delivered on March 17, 1998

The part of the judgment below on retirement allowance claim is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below, based on the following facts: (a) the plaintiffs retired from office on each day as of the date indicated in the judgment as a driver belonging to the defendant company providing call taxi transportation services; (b) the defendant company has deposited all of daily taxi earnings with the driver as a two-day system or one-day work system per day and received a monthly wage from the company; (c) if the operating earnings exceed the standard amount, the amount equivalent to 60% of the excess amount is paid to the driver as a performance bonus; and (d) the amount equivalent to 60% of the total daily earnings as a result of the performance bonus paid to the driver; and (e) there was a fixed monthly wage system with the driver's personal income; (c) the plaintiffs have worked in the form of a fixed monthly wage system with the remainder of the remainder of the total earnings, and (d) the amount calculated as retirement allowances for the purpose of calculating the amount calculated as the average wage for 150 days to 330 days according to the number of years of service, and (e.g., the amount of individual taxi commissions calculated as a fixed wage.

2. The retirement allowance provision under the former Labor Standards Act (amended by Act No. 5309 of Mar. 13, 1997) is a mandatory provision ordering an employer to pay a retirement allowance with the employee’s contribution, and a retirement allowance is always required to be contributed in full by the employer. In order to ensure predictability in such a contribution, the average wage, which is the basis for the calculation of a retirement allowance, shall be deemed to be limited to the part that the employer can manage or control the total income earned by the employee (see Supreme Court Decision 95Da5733, Mar. 13, 1998).

In this case, the plaintiffs paid the remaining amount after paying the taxi commission among daily transportation income directly belonging to the plaintiffs themselves, and the defendant company did not know about the amount of the plaintiffs' individual revenue, and there is no possibility of management or control. Thus, the plaintiffs' individual revenue is not included in the average wage which is the basis of the calculation of retirement pay.

Therefore, the court below erred in the misapprehension of legal principles as to average wages, which are the basis for the calculation of retirement allowances, since the part of individual income of the plaintiffs is also included in the average wages which are the basis for the calculation of retirement allowances, and the ground of appeal pointing this out has merit

3. Therefore, the part of the judgment of the court below concerning the claim for retirement allowance is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-hee (Presiding Justice)