[1] The method of calculating retirement allowances in case where the “workers engaged in driving service in the general taxi transportation business” retired after the establishment and enforcement of Article 6(5) of the Minimum Wage Act received wages below the minimum wage under the aforementioned provision

[2] In a case where Gap was employed as a taxi engineer for Eul and retired from office after this new establishment and enforcement of Article 6(5) of the Minimum Wage Act, the case holding that Eul is liable to pay Gap a retirement allowance calculated by applying the minimum wage under the above provision as the average wage, and it cannot be reduced without permission

[1] In cases where a retired employee received wages below the minimum wage under the above provision after the enforcement date of Article 6(5) of the Minimum Wage Act, an employer who runs a passenger taxi transport business is obligated to pay retirement allowances calculated on the basis of average wages which include not only the wages actually paid to the said employee for three months prior to the date of retirement but also the wages which should have been paid as a matter of course pursuant to the above provision.

[2] In a case where Gap joined the transportation company Eul as a taxi engineer and retired from office after this new establishment and enforcement of Article 6(5) of the Minimum Wage Act, the case holding that the Gap company is obligated to pay Gap the minimum wage under the above provision as average wages, and the amount of retirement pay between the employees who retired before and after the enforcement of the above provision, and the amount of transport income already paid by Gap cannot be reduced without permission, considering equity in the amount of retirement pay between the employees who retired from office before and after the enforcement of the above provision

[1] Article 6(1), (3), and (5) of the Minimum Wage Act, the Addenda (by December 27, 2007), Article 5-2 of the Enforcement Decree of the Minimum Wage Act, Article 34 of the Labor Standards Act, Article 8 of the Guarantee of Workers' Retirement Benefits Act / [2] Article 6(1), (3), and (5) of the Minimum Wage Act, Article 5-2 of the Enforcement Decree of the Minimum Wage Act, Article 34 of the Labor Standards Act, Article 8 of the Guarantee of Workers' Retirement Benefits Act

Plaintiff 1 and three others (Attorney Kim-dong et al., Counsel for the plaintiff-appellant)

old M&S Co., Ltd. (Law Firm Gyeongbuk, Attorneys White-gu et al., Counsel for defendant-appellant)

Daegu District Court Decision 2012Na2710 decided July 11, 2012

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The Defendant’s appeal is dismissed.

1. Where there is no precedent of the Supreme Court with regard to the interpretation of statutes applicable to a small case in a specific case, there is a case where a number of small claims, the issue of which is the interpretation of the same statutes, are pending in the lower court, and there is a case where the Supreme Court terminates the case without making a decision on the interpretation of the statutes on the grounds that it is a small amount case, it would be likely that the legal safety of people's lives would be harmed if the case is terminated without making a decision on the interpretation of the statutes. In such special circumstances, even if the Supreme Court did not meet the requirement of "when it makes a decision contrary to the precedents of the Supreme Court," which can be a ground for appeal, even if it does not meet the requirement of "when it makes a decision contrary to the precedents of the Supreme Court," it shall be deemed that the decision may be made ex officio with regard to errors in the application of the interpretation of the substantive law in terms of the unification

2. In calculating retirement allowances for retired workers after the enforcement of Article 6(5) of the Minimum Wage Act, which was newly established with the content that the scope of wages included in the minimum wage of drivers in taxi transport business is the wage prescribed by Presidential Decree except for the wage calculated on the basis of output, there is no Supreme Court precedent as to whether to reduce the average wage calculated on the basis of the above provision, and there is a situation where the lower court’s determination is different. Thus, the lower court ex officio determines the interpretation and application of the above provision of this case.

Article 6(1) of the Minimum Wage Act provides that “An employer shall pay a worker to whom the minimum wage is applied at least the minimum wage.” Article 6(3) provides that “The part which sets an amount short of the minimum wage in an employment contract between the worker to whom the minimum wage is applied and the employer shall be deemed null and void, and the invalidated part shall be deemed to have been paid the same wage as the minimum wage prescribed by this Act.” Article 6(5) of the same Act provides that “The scope of wages included in the minimum wage of ordinary taxi transportation business shall be determined by Presidential Decree, excluding the wage calculated on the basis of the output.” Article 5-2 of the Enforcement Decree of the Minimum Wage Act provides that “The wages prescribed by Presidential Decree shall be paid at least once a month in accordance with the collective agreement, rules of employment, and payment terms and payment rate prescribed by the employment contract.” Article 6(3) provides that “The amount of wages paid for the total number of fixed working hours or fixed working days shall not be included in the amount of wages paid for 20 days prior to the retirement allowance payment period.”

Thus, if a retired employee received wages below the minimum wage under the above provision after the enforcement date of the above provision, the employer who runs the passenger taxi transport business is obligated to pay the retirement allowance calculated on the basis of the average wage which includes not only the wages actually paid to the above employee for three months prior to the retirement date, but also the wages which should be paid as a matter of course under the above provision.

3. The lower court determined that the Defendant is obligated to pay retirement allowances calculated by applying the minimum wage under the above provision as the average wage to the deceased non-party (hereinafter “the deceased”), who retired on or after July 1, 2010 when the instant provision was enforced at the Si where the Defendant was the Defendant’s place of business, as well as compensation for delay, barring any special circumstance, and determined that the amount of retirement allowances to be paid by the deceased should be determined as 65% of the amount calculated as above, on the grounds of the circumstances stated in its reasoning, including equity in the amount of retirement allowances between the retired workers before and after the enforcement of the above provision, and the amount of transport income already paid by the deceased.

4. However, in light of the above legal principles, the defendant is obligated to pay the deceased a retirement allowance calculated by calculating the minimum wage under the provision of this case as the average wage, and considering all the circumstances as decided by the court below, it shall not be allowed to reduce it without permission.

Nevertheless, the court below determined otherwise on the basis of the circumstances stated in its holding. The court below erred by misapprehending the interpretation of the provision of this case, which affected the conclusion of the judgment.

Supreme Court Decision 2009Da99396 Decided April 15, 2010, which the court below used as the basis for reduction, is not appropriate to apply to this case, in exceptional cases where the average wage, which is the basis for the calculation of retirement benefits, is considerably less or more than the ordinary paid wage, is calculated, the average wage shall be calculated separately by a reasonable and reasonable method that can reflect the ordinary living wage of workers as the basis for the calculation of retirement benefits.

Therefore, the defendant's ground of appeal that the retirement allowance of the deceased should be reduced more than the amount recognized by the court below is without merit, and the plaintiffs' ground of appeal that the court below's reduction of retirement allowance is illegal is with merit.

5. Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)