Since customs is a kind of empirical rule, it belongs to ex officio determination.

In fact, custom is a kind of empirical rule in daily life, and it should be judged by a judge's own authority without recourse to the party's assertion or proof. Thus, the defendant Corporation established a retirement allowance provision on the premise that bonus is not included in the concept of the average wage at the beginning, and it is not recognized that it was established in custom which is a fact thereafter.

Article 106 of the Civil Act, Article 187 of the Civil Procedure Act

Plaintiff 1 and 8 others, Counsel for the defendant-appellant

Attorney Kim Jong-soo et al., Counsel for the defendant-appellant

Seoul High Court Decision 75Na1941 delivered on April 9, 1976

The appeal shall be dismissed. The costs of appeal shall be borne by the defendant.

We examine the first ground for appeal by the defendant's attorney.

According to the facts established by the court below, Article 5 of the Employee Wage Regulations of the defendant Corporation classifys the wage system into basic pay, allowances and bonuses. Article 24 of the same Regulations provides that "the Corporation may pay bonuses not exceeding 100 percent of ordinary wages once a year according to the management performance: Provided, That the Corporation shall obtain the approval of the Minister of Trade, Industry and Energy, and the collective agreement provides that "the Corporation shall give four times a year and one time a bonus not exceeding 100 percent of ordinary wages according to the management performance" without the proviso on the approval of the Minister of Trade, Industry and Energy. The defendant Corporation has, in fact, continuously paid bonuses equivalent to 100 percent of ordinary wages once a year to its employees, four times and three months. Thus, this bonus is not just in the judgment below, notwithstanding the provisions of Article 24 of the same regulations, but it is not just in the calculation of the average wage or a similar institutional retirement allowance, and it is not erroneous in the misapprehension of Article 28 of the Labor Standards Act or its interpretation."

We examine the second ground for appeal.

In fact, customs which is false belongs to a kind of empirical rule in daily life, and the empirical rule is a kind of rule. In determining the existence or absence of any empirical rule, a judge can make a decision ex officio without asserting or supporting the parties. Therefore, the court below is just in holding that there is no evidence that this has been established as a later fact-based custom since the first instance court enacted a retirement allowance provision on the premise that the concept of average wage does not include bonuses, and even if there is no intention at the time of the enactment of the above provision, it can be judged that there is no objective interpretation of the nature of the bonus or the retirement allowance provision as mentioned above, which the plaintiffs received at the time of their retirement, and there is no error in the misapprehension of the legal principles of custom such as theories.

The ground of appeal No. 3 is examined.

According to the provisions of Article 19(1) of the Labor Standards Act, the term "average wage" in this Act refers to the total amount of wages paid to the worker during the three-month period prior to the date on which the cause for calculating the average wage occurred and the total number of days in that period is limited. In the same purport, the court below judged that the calculation of the average wage of the plaintiffs, which serves as the basis for calculating the retirement allowance, should include the bonus received by the plaintiffs for the three-month period prior to their retirement, and therefore it is clear that the bonus for the three-month period prior to their retirement, such as the original time, was calculated as the average wage, and there is no error of omission of

This paper also is groundless.

The ground of appeal No. 4 is examined.

The purpose of the Defendant Corporation is to operate and manage coal mines designated by the Government and to operate the business of producing, processing, selling coal and its incidental activities is to gather coal, and therefore, the act of collecting coal shall be deemed as a commercial activity for the purpose of selling it. Accordingly, the labor contract concluded between the Defendant Corporation and the Plaintiffs for the business of collecting coal shall be deemed as an auxiliary commercial activity. Therefore, the first instance judgment ordering the Plaintiffs to pay damages for delay at the rate of 6% per annum, which is the commercial legal interest rate, is correct, and the lower court did not err in the misapprehension of legal principles as to the disposition of this Article. This issue is without merit.

Therefore, this appeal is without merit, and it is dismissed. The 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 Il-young (Presiding Justice)