[1] The case holding that a transport company's business trip, work-out equipment paid by the transport company to the truck driver does not constitute wages

[2] The requirements for bonus to be recognized as a wage and the point of time to determine whether bonus is included in the average wage which is the basis of the calculation of the retirement allowance

[3] The case holding that a special and uncertain special bonus which was paid once at the time of retirement does not constitute wages

[4] The method of calculating the average wage in a case where the wage for the three-month period prior to the retirement considerably exceeds the ordinary wage due to a special reason

[1] The case holding that since the transportation company's business trip-type and work-out equipment paid by the truck driver cannot be deemed as the wage which is the remuneration for work, it shall not be included in the average wage which is the basis for the calculation of the retirement pay.

[2] If a bonus is continuously and regularly paid and the amount of the bonus is determined, the nature of the wage that is paid as compensation for work, or the occurrence of the reason for the payment is uncertain and temporary payment cannot be deemed as wages. In addition, whether the bonus can be included in the average wage that is the basis for the calculation of retirement allowances should be determined at the time of retirement, barring special circumstances.

[3] The case holding that since special performance bonus cannot be deemed to have been paid as wages which are the basis for the calculation of retirement pay, it shall not be included in the average wage, which is the basis for the calculation of retirement pay, in case where the special performance bonus and bonus paid according to the management performance of the year concerned was paid only once but it cannot be deemed that it was paid continuously and regularly since it was unclear whether it will continue to be paid in the future

[4] The retirement allowance system aims to guarantee the ordinary life of workers as before. As such, even in cases where the "wages paid to the worker during the three-month period prior to the date on which the grounds for the payment of the retirement allowance occurred," which serves as the basis for the calculation of the amount to be paid, is considerably greater than the ordinary wage due to special reasons, if it is deemed as the basis for the calculation of the average wage, it would not be contrary to the fundamental purpose of the system to guarantee the ordinary life of workers as before. In such a case, the average wage shall be calculated on the basis of the wages for the immediately preceding three-month period except for the period for which the worker intentionally engaged in an act to increase

[1] Articles 18 (see current Article 18), 19 (1) (see current Article 19 (1)), and 28 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997); / [2] Articles 18 (see current Article 18), 19 (1) (see current Article 19 (1) of the Labor Standards Act); 28 (1) (see current Article 34 (1) of the Labor Standards Act) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997); / [3] Article 18 (1) (see current Article 19 (1) (see current Article 34 (1)) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 199); Article 19 (1) (3) (see current Article 19 (19) (1) (1) (1) (3) of the Labor Standards Act) (see current Article 4) of the Labor Standards Act)

[1] Supreme Court Decision 95Da2227 delivered on May 10, 1996 (Gong1996Ha, 1794), Supreme Court Decision 95Da19256 delivered on May 14, 1996 (Gong1996Ha, 1837), Supreme Court Decision 95Da36817 delivered on May 28, 1996 (Gong1996Ha, 1979), Supreme Court Decision 95Da24074 delivered on June 28, 1996 (Gong1996Ha, 232) / [3] Supreme Court Decision 82Da342 delivered on October 26, 198 (Gong1983, 196Ha, 296Ha, 2332 delivered on June 29, 196) / [3] Supreme Court Decision 97Da198498 delivered on May 26, 1982

Plaintiff

Han-jin Co., Ltd. (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Seoul District Court Decision 96Na31146 delivered on April 11, 1997

The part of the judgment below against the defendant is reversed and that part of the case is remanded to the Panel Division of Seoul District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in the grounds of appeal submitted after the lapse).

1. Regarding ground of appeal No. 1

A. As to the business trip ceremony

According to the reasoning of the judgment below, the court below determined as follows: (a) as a cargo driver of the defendant company, the plaintiff started transporting cargo on the new wall on the next day and work for a shorter period of time, unlike other general employees, that meals are carried out at a general restaurant on the side of an expressway without a cafeteria; (b) if the cargo driver working for 24 hours as above, the defendant shall pay 4,000 won per 1 to employees for five (20,000 won per 4,00 won per 24 hours, and if he worked for a cargo driver, 30,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per 9,000 won per month, the plaintiff's food was paid to the defendant company's employees.

However, even according to the facts acknowledged by the court below, the circumstances leading up to the payment of the above business trip are sufficiently recognizable that if a worker's work outside of the premises of the defendant company and does not provide meals in his family or a cafeteria, he would be paid for compensating for the expenses for the meal expenses. According to the records, the general worker would have received a uniform payment of KRW 82,500 per minute for 3,300 per day, respectively. The fact that there is a difference between the case of a worker's business trip and the case of a worker's business trip, it is difficult to view that the above business trip price reflects the price of his work in terms of quality and quantity, and it is difficult to see that the above business trip price reflects the price of his work, and since the above business trip amount is mainly a food in his neighboring restaurant in Seoul area, it is difficult to see that the plaintiff would be paid the amount exceeding the average wage of KRW 82,50 in consideration of the fact that the driver would not be paid for the work.

B. As to the discharge equipment

The court below determined as follows: (a) based on its evidence, the defendant company established and implemented the criteria for the payment of a fixed or long-distance work departure equipment for cargo drivers in the off-wing area in accordance with the daily transport performance of each type of work; and (b) according to the above criteria, the transport performance is evaluated as the work performance from the starting point to the ending point of work; and (c) there are many working performance equipment; (d) in principle, the work departure equipment must be calculated and paid every day after the completion of the work; (e) the work departure equipment must be established and implemented for the calculation of the detailed contents in accordance with the standards for the payment of the work departure equipment; (e) the fact that the work departure equipment was established and implemented for each payment throughout the country as well as the work departure equipment; and (e) the money that the plaintiff received as the work travel equipment was paid for the transport expense, but it is not reasonable to recognize that the plaintiff paid the above work expense to the above employees as the specific transport condition or the specific transport expense in the working environment.

However, according to the records, the reason why the defendant company supplied the above work out equipment is to improve the efficiency of the defendant company's cargo drivers' work and correct the shipper's unfair money demand practices, etc., while resolving the cost of repair of minor accidents or breakdowns that may occur during operation or the cost of the driver's personal expenses during the work trip, such as the cost of the driver's license when loading and withdrawing containers within the shipping company, etc. Accordingly, the driver calculated the above work out equipment along with the above work out equipment and the expenses of the driver's personal expenses during the work trip, etc. whenever every work is completed and every time the work is returned, the above work out equipment is treated as an item of operation expenses. The above work out equipment is treated as an item of the defendant company's accounting, and the above work out equipment is paid separately from the above overtime work hours or night work allowances, etc. The specific payment criteria may vary depending on the characteristics of the region or branch, and it is difficult to view it as an amount exceeding the average of 30 million won.

C. Nevertheless, the court below erred in the misapprehension of legal principles as to average wages, which is the basis for the calculation of retirement allowances, and included in the average wages in the business trip and business trip equipment as wages, thereby affecting the conclusion of the judgment. Therefore, there is a ground to point this out.

2. Regarding ground of appeal No. 2

If a bonus is continuously and regularly paid and the amount of the bonus is determined, it shall have the nature of the wage to be paid in compensation for labor (see, e.g., Supreme Court Decisions 81Meu1140, Feb. 8, 1983; 81Meu1275, Nov. 23, 1982); however, it shall not be deemed that the occurrence of the reason for the payment is uncertain and it is not a wage (see, e.g., Supreme Court Decision 82Meu342, Oct. 26, 1982); and whether the bonus can be included in the average wage that serves as the basis for the calculation of the retirement allowance should be determined at the time of retirement, unless there are special circumstances (see, e.g., Supreme Court Decision 95Da19256, May 14, 1996).

According to the reasoning of the judgment below, the court below determined that in the wage agreement on the improvement of wage and working conditions in 1995 entered into with the labor-management agreement on the improvement of wage and working conditions in 194, the defendant company paid 500% of the regular bonus and 50% of the performance bonus on the basis of the annual bonus and 50% of the annual bonus according to the management performance in 1994, and that in the wage agreement on the improvement of wage and working conditions in 1995 entered into on July 25, 1995, the above special bonus and 50% of the total annual bonus were paid to all employees on the basis of 60%, including the above special bonus and 50% of the annual bonus, and the above special bonus and 630% of the annual bonus were paid on the basis of the annual bonus and the payment of 630% of the total annual bonus, not temporary bonus and the payment of wages.

However, since the terms and conditions of the payment of the special performance and bonus provided for in the wage agreement of 1994 are that 50% of the special performance and bonus should be paid within the year of "in accordance with the management performance of the year 1994, it can not be deemed that the payment has

In addition, since the plaintiff retired on April 22, 1995, it should be determined as of the time of the plaintiff's retirement as to whether the above special performance bonus constitutes the average wage. Since the above special performance bonus was paid only once but it was unclear whether it will continue to be paid in the future at the time of the plaintiff's retirement, it cannot be said that it was paid continuously and regularly.

Therefore, the special performance and bonus that the plaintiff received in 1994 cannot be deemed to have been paid as remuneration for work, so it shall not be included in the average wage, which is the basis for the calculation of retirement allowances.

Nevertheless, the lower court determined that the above special performance bonus should be included in the average wage, which is the basis for the calculation of retirement allowances, solely for the reasons indicated in its reasoning, shall be deemed to have committed an error of misapprehending the legal principles as to wages, which affected the conclusion of the judgment. Therefore, there

3. As to the third ground for appeal

Since the retirement allowance system aims to guarantee a worker's ordinary life as before, even in cases where the "wages paid to the worker during the three-month period prior to the date on which the reason for the payment of the amount of the retirement allowance occurred," which is the basis for the calculation of the amount of the amount to be paid, is considerably greater than the ordinary wage due to special reasons, if it is the basis for the calculation of the average wage, it would not be contrary to the fundamental purpose of the system to guarantee the ordinary life of the worker as before. In such cases, the average wage shall be calculated on the basis of the wage for the three immediately preceding months except for the period during which the worker intentionally engaged in an act to increase the average wage (see Supreme Court Decision 94Da8631 delivered on February 28, 1995).

According to the records, the average monthly amount of the allowances received by the Plaintiff from July 1994 to December 12 of the same year is KRW 870,553, and the average monthly amount of the allowances paid during the three-month period prior to the retirement is KRW 1,047,520, and the difference is KRW 176,967. Thus, in light of the Plaintiff’s share of the monthly average wages in the Plaintiff’s monthly average wages, it cannot be deemed that the average wages for the three-month period prior to the Plaintiff’s retirement are significantly higher than ordinary wages, and there is no evidence to deem that the Plaintiff intentionally increased the average wages for the three-month period prior to the retirement. Therefore, the lower court’s argument that calculating the retirement allowances based on the higher average wages is justifiable, and there is no error in the misapprehension of legal principles as to the principle of good faith in calculating the average wages.

4. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)