(a) Where a company engaged in fisheries has provisions concerning the payment of monthly paid leave allowance under the rules of employment and collective agreement, whether the company has a right to claim the above allowances to workers notwithstanding Article 49 of the Labor Standards Act (affirmative)

(b) Whether the unpaid monthly leave allowance is included in the average wage for the calculation of the retirement allowance, where the relevant allowance is stipulated to be paid as ordinary wages where a worker retires without using the leave prescribed in the collective agreement and the rules of employment (affirmative);

(c) The propriety of the disposition, which is calculated according to the average wage at the time of actual retirement, in case where the person was deemed to have retired during the continuous employment and received retirement allowances calculated on the basis of the average wage at the time of actual retirement, but actually retired after continuous employment (affirmative)

D. Whether the revised retirement allowance payment provision disadvantageous to the worker is retroactively applied (negative)

A. Even if Articles 46 and 47 of the Labor Standards Act do not apply to a company engaged in fishery business under Article 49 subparag. 2 of the same Act on holiday work and the payment of monthly holiday allowance, as long as the rules of employment or collective agreement established by the employer itself stipulate the payment of monthly holiday allowance under the rules of employment or collective agreement on the payment of monthly holiday allowance, the right to claim monthly holiday allowance under the Labor Standards Act or collective agreement is recognized.

(b) Where an employee retires without using an appropriate leave, it is reasonable to calculate the retirement allowance including the unpaid monthly leave allowance at the time of calculating the average wage if the collective agreement and the rules of employment stipulate that the allowance should be paid as ordinary wages;

C. Even if the company had received retirement allowances calculated based on the average wage at the time of retirement from the time of the employee's retirement to the time of the employee's retirement under the previous rules on the payment of retirement allowances from the time of the employee's retirement to the time of his/her retirement, if the employee's retirement is not actually retired, the court below's measure that calculated retirement allowances based on the average wage at the time

(d) Unless otherwise transitional provisions exist when amending the rules on the payment of retirement allowances, the rules on the employee remuneration which has been modified disadvantageous to the employee cannot be viewed as being retroactively applied to the previous service period.

(a)Article 47(a) of the Labor Standards Act; Article 49(2)(b)(c) of the Labor Standards Act; Article 28(b) of the same Act; Article 19(1)(c); Article 95 of the same Act;

A. D. Supreme Court Decision 89Meu15939 Decided November 27, 1990 (Gong1990.192). Supreme Court Decision 86Meu1124 Decided April 25, 198 (Gong1988.82) Decided May 10, 1988 (Gong198.948) Decided 88Meu15413 Decided August 8, 1989 (Gong1343)

Lee Young-hun et al.

Korea Salt Business Co., Ltd., Counsel for the defendant-appellant-appellee and 3 others

Seoul High Court Decision 89Na34850 delivered on June 20, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

1. The fact-finding by the court below is acceptable, and there is no violation of the rules of evidence against the rules of evidence.

2. According to the reasoning of the judgment below, the court below held that the defendant company (hereinafter referred to as the "defendants, companies") paid monthly paid leave to employees who opened work hours under the rules of employment and collective agreements, and who work not less than 90 percent of annual paid leave, but the employees may pay annual paid leave without using it, and if they retire without using annual paid leave due to the company's work circumstances, etc., they refer to monthly paid leave and annual paid leave allowances. The company, as well as the present employees, has paid paid leave to the present workers within a certain scope, and the rules of employment of the defendant are just in applying the working conditions provided for in subparagraphs 2 and 3 of Article 49 of the Labor Standards Act to the present workers among the present employees of the company under Article 18 (5) and the rules of employment of the court below that Article 33 (1) of the Labor Standards Act does not apply to the present workers who work not less than 90 percent of the ordinary paid leave (see Article 49 (1) of the Labor Standards Act).

In addition, even if there are provisions such as the theory of lawsuit in Article 8 of the collective agreement, it is not different.

3. The judgment of the court below that the plaintiff Lee Young-hun could not be viewed as a present business operator if he was a person in charge of the production and quality control of the defendant's future branch office (Grade 3 A3) as recognized by the court below is also justified.

4. In addition, the court below recognized that the plaintiffs (the meaning of plaintiffs, excluding the plaintiff Kim Jong-tae, was replaced by the court below) opened a prescribed number of working days, and it cannot be said that it was illegal to use it as the basis for calculating the average wages or retirement allowances, or that it was not based on evidence.

5. Therefore, the arguments asserted from the opposite position are groundless.

On the second ground for appeal

According to the facts acknowledged by the court below, it is also justifiable for the court below to calculate the retirement allowance including the unpaid monthly leave allowance as cited by the court below when calculating the average wage (the defendant company's collective agreement and rules of employment make it possible to appropriately use the worker only for the pertinent year, and pay the ordinary wage for the number of days of full-time leave when not used before the expiration of the period of full-time leave). The arguments are different from the facts recognized by the court below, and there is no reason to criticize the judgment of the court below.

On the third ground for appeal

The judgment of the court below that the defendant should calculate the retirement allowance according to the rate of short-term payment under the previous rules on the payment of retirement allowance for the service period from May 1, 1972 to the date of retirement, and it is just in the determination of the court below that the defendant should pay the retirement allowance for 30 days each year of service with the consent of the plaintiffs. Accordingly, the defendant company received the retirement allowance from the plaintiffs in the form of obtaining the consent of the plaintiffs. Since the defendant company received the retirement allowance for the period of service from the date of employment to the date of submission of the plaintiffs, even though there was an agreement to revise the above rules on the payment of retirement allowance for the period of service from the date of employment to April 30, 1972, the defendant should calculate the retirement allowance according to the rate of short-term payment under the employee remuneration regulations for the period of service from May 1 to each date, 1972, even if the defendant received the waiver of his theory and resignation from the plaintiffs, it is not erroneous in the misapprehension of the legal principles as to the average wage payment rate as of employment.

In addition, unless there are other transitional provisions in the above amendment of the retirement allowance payment provision, it cannot be deemed that the employee remuneration provision which was modified disadvantageously is retroactively applied to the previous service period. (See the above decision) Therefore, there is no reason to argue in the opposite position.

On the fourth ground

In calculating the retirement allowance of the deceased Kim-young, the court below recognized that it has been continuously served for 13 years and 2 months from May 1, 1972 to July 5, 1985 in the annexed list No. 5 list of the judgment of the court below, and found that the amount calculated as 13 years and 10 months from 13 years and 10 months in the calculation calculation column constitutes a case where there is an misunderstanding of the law on the calculation of the number of days of retirement payment rather than a case where there is an misunderstanding of the law on the calculation of the number of days of retirement payment. Accordingly, it is back to the point that there is no reason for the discussion.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.