If there is no wage income of a worker in the past due to the employer's repair of the worker's resignation after one month from the time of submission in an employment contract with no fixed period of time, the effective date of retirement and the standard period for calculating average wages.

In a case where there has been no wage income of a worker for one month since the employer did not provide an opportunity to provide a worker without any special circumstances despite the worker's submission of resignation and expressed his/her intention to do so, the average wage, which serves as the basis for the calculation of the retirement allowance, has the characteristics of a subsequent payment of wages, and it is reasonable to view that the average wage, which serves as the basis for the calculation of the retirement allowance, should be calculated as the basis for the calculation of the retirement allowance, for the last three months of the worker's actual payment of wages, i.e., the average wage, even if the employer received the resignation of the worker, should be calculated as the basis for the calculation of the retirement allowance, regardless of the worker's acceptance of the resignation.

Article 60 of the Civil Act, Articles 19 and 28 of the Labor Standards Act

Salt leapening

Leewon Co., Ltd.

Busan District Court (86 Ghana 11819)

1. Alteration of the original judgment shall be made;

2. The defendant shall pay to the plaintiff 1,732,067 won with 25% interest per annum from August 3, 1986 to the full payment rate.

3. The plaintiff's remaining claims are dismissed.

4. The costs of lawsuit shall be divided into ten parts through the first and second trials, one of which shall be borne by the plaintiff, and the remainder by the defendant.

5. Paragraph 2 can be provisionally executed.

The defendant shall pay to the plaintiff 2,00,000 won with 25% interest per annum from the day following the service of the copy of the complaint of this case to the day of full payment.

The costs of lawsuit shall be assessed against the defendant and provisional execution.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

The court costs are assessed against all the plaintiff.

Comprehensively taking account of the whole purport of the oral argument of the chairman of the trial court, the plaintiff was employed as a member of the production department of the defendant company on October 1, 197 and returned to Korea after completing overseas service from March 16, 1985 to December 14 of the same year, and submitted the resignation of the defendant company on December 23 of the same year. The defendant company accepted the plaintiff's above resignation as of January 23, 1986, without immediately accepting the plaintiff's resignation, and accepted it as of January 23, 1986 when one month has passed since it received it as of January 23, 1986, and there is no other counter-proof. The fact that the defendant company was a business place with 16 or more full-time workers, and there is no dispute between the parties.

Accordingly, the plaintiff, as the cause of the claim in this case, is 2,238 won when calculating the average wage on the basis of December 23, 1985 when the plaintiff expressed his/her intention of retirement to the defendant company, and since the total service period up to that time by the plaintiff was 23 December 23, 198, the plaintiff paid 5,438,890 won as retirement allowance under the Labor Standards Act, even though he/she paid 3,306,50 won among them, he/she paid 17,350 won as retirement allowance under the Labor Standards Act, and therefore, he/she claimed against the defendant company the remainder of 2,177,350 won as retirement allowance of 2,350 won and its delay damages.

On the other hand, the defendant's employment contract relationship between the plaintiff and the defendant is not effective as of December 23, 1985 when the plaintiff declared his intention of retirement through the submission of a private employee, but is only effective as of January 23, 1986 when the defendant accepted it. Thus, the calculation of the average wage should be based on this day.

Therefore, with regard to the standard period for calculating the average wage, the amount of retirement pay under the Health Service Act and the erroneous amount of retirement pay under the Labor Standards Act are in the nature of wages, and as such, the average wage, which serves as the basis for calculating the average wage, is the basic principle of calculating the amount at an appropriate level so as not to be less than the ordinary wage at the time of retirement of a worker, is the same as in the instant case, even though the plaintiff, who is an employee, submitted to the worker and expressed his intention of retirement without any special circumstances, so one month has passed since the defendant, who was the employer, did not provide the opportunity to provide the worker and did not accept it, and even if the defendant received the plaintiff's resignation, the average wage which serves as the basis for calculating the amount of retirement pay, even if the defendant received the plaintiff's resignation, should be calculated at the basis of the final three months, i.

Therefore, with respect to the amount of retirement allowances to be paid by the plaintiff from the defendant, it is clear that the plaintiff is entitled to 1, 2-1, 2-1, 3-2, Gap evidence 4-2, 2-2, Eul evidence 3-1, 17, 19, 21, 23-1, 18, 20, 24 (each salary for 18,20,24), and Eul evidence 1, 2-1, 2-1, 2-1, 2-2, 2-2, 3-2, 4 of the total amount of retirement allowances to be paid to the defendant 4, 2-1, 2-1, 2-1, 2-1, 2-1, 2-1 of the above amount of retirement allowances to be paid to the defendant 2, 2-1, 2-1, 3 of the above amount of retirement allowances to be paid to the defendant 14-2, 200, 1981.

However, the defendant defense that the plaintiff paid 3,388,865 won as retirement allowance to the plaintiff beyond the scope of the person who was paid by the plaintiff. Thus, in full view of the above mentioned in Eul evidence 1, Eul evidence 2-1, and Eul evidence 2-2, the testimony and the whole purport of oral argument by the defendant as retirement allowance of 2,967,230 won on February 7, 1986, and 421,635 won on April 30 of the same year, and 3,38,865 won on total, 3,865 won on April 30 of the same year, the defendant's defense is without merit.

Therefore, the defendant is obligated to pay to the plaintiff 1,732,067 won remaining after deducting 3,38,865 won already paid out of the above retirement allowance 5,120,032 won, and damages for delay at the rate of 2,50% per annum from August 3, 1986 to the date following the delivery of a copy of the complaint of this case sought by the plaintiff. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as without merit. Since the original judgment is partially unfair, it is modified as stated in the Disposition 2 and 3, and as to the apportionment of litigation costs, Articles 9, and 92 of the Civil Procedure Act and Article 6 of the above Special Act are applied to the declaration of provisional execution.

[Attachment]

Judges Cho Jong-dae (Presiding Judge)