2019, 56 Wages, etc.

Attached 1. It is as listed in the Plaintiff List.

[Plaintiff-Appellant] Plaintiff Law Firm

Korea D Development Corporation

Ulsan (Ulsan)

Attorney Park Jae-hoon

June 17, 2020

August 12, 2020

1. Attached 1. The defendant listed in the plaintiff's list in annexed Form 2. List as retirement pension charges in the plaintiffs' contribution plan account;

A. It is confirmed that each of the relevant money as stated in the "Additional Accumulation Amount of 2016" and the corresponding money as stated in the "Additional Accumulation Amount of 2017" as from January 1, 2017; (b) from January 1, 2018; and (c) from January 1, 2018; and (d) from January 1, 2019; and (d) from January 1, 2019; and the corresponding money as stated in the "Additional Accumulation Amount of 2019" as stated in the "Additional Accumulation Amount of 2019" are liable to pay an amount calculated at the rate of 10% per annum from January 1, 202 to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of hearing.

1. Basic facts

A. Status of the parties

The defendant is a public corporation under the Korea Electric Power Corporation, which is the parent company, for the purpose of developing and developing electric resources and its related businesses, and the plaintiffs listed in the plaintiff list in attached Form 1 (hereinafter referred to as the "Plaintiffs") are the workers below the fourth class working in the defendant.

B. Payment of the Defendant’s retirement pension contributions

1) From around 2011, the Defendant established and operated a defined benefit plan and a defined contribution plan (DB and Defined Befit) in accordance with the Guarantee of Workers' Retirement Benefits Act. The Plaintiffs joined the defined contribution plan.

2) From the year 2016 to the year 2019, the Defendant calculated average wages, excluding management evaluation performance pay, and paid retirement pension contributions to the Plaintiffs’ retirement pension account. The Defendant’s remuneration regulations, etc.

The parts related to this case among the defendant's remuneration regulations, detailed rules for enforcement of remuneration and guidelines for operation of the retirement benefit system are as follows.

The purpose of Article 1 (Purpose) of the Terms and Conditions for Remuneration is to provide for matters concerning remuneration for employees of four or less classes.The types of remuneration shall be as follows (amended on December 29, 2017): 1. Basic annual salary, occupational salary, additional salary, job-based salary (in a position position, work environment, job-based salary): 2. The internal evaluation rate, performance-based bonus, 3. Other matters: The annual payment rate of performance-based incentives shall be the internal evaluation rate of salary, performance-based bonus, annual salary, bonus, 20 (Performance-Based Annual Salaries) according to the results of the Government's performance-based management performance-based evaluation, and the annual payment rate of the 1.2. The annual payment rate of performance-based incentives shall be limited to the amount of remuneration for employees of the 4.2. The detailed standards for performance-based incentives shall be determined separately by the President of the Republic of Korea under the provisions of Article 19 of the Act.

1. Monthly amount of annual salary, job-based salary, and other items (amended by April 29, 2016) paid in the three preceding months of retirement; 2. Annual leave compensation shall be equivalent to 3/12 of the last payment before retirement (amended by January 8, 2014); 3/12 of the bonus, performance-based incentives (excluding performance-based bonuses) paid in the last 12 months from retirement; 4. Research expenses paid in the three preceding months (amended by April 29, 2016), Article 19 (Calculation Period and Payment Method) and (1) of the total annual salary and performance-based incentives are as follows; 2. Performance-based bonuses and performance-based incentives are to be paid by the president in advance for the two-month period after the date of payment; 3. Payment of annual salary and performance-based incentives shall be limited to those who hold office as of the date of payment, and the amount of annual retirement pension shall be 10/29 of the total annual salary and performance-based retirement pension for the two-month period.

1. In the case of continuing subscription personnel, the charges shall be determined on the basis of the amount under paragraph (1), and the difference between the sum of the amounts actually paid each month (1/12 of the average wage in the preceding year) shall be settled at the end of each year (after the determination of wages in the corresponding year): Provided, That when the amount is reduced, the settlement shall be made after subtracting from the amount of deposits in the following year.

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 4 (including branch numbers), and the purport of the whole pleadings

2. Summary of the parties' arguments

A. Although the Plaintiffs’ management evaluation performance rating constitutes the basis for calculating the average wage, the Defendant excluded the management evaluation performance rating from the calculation of the average wage that serves as the basis for calculating the amount of retirement pension to be paid to the Plaintiffs’ retirement pension account. From 2016 to 2019, the Defendant is obligated to pay the difference between the management evaluation performance rating and the amount of retirement pension paid to the Plaintiffs, including the average wage, and the amount of retirement pension already paid to the Plaintiff’s retirement pension account, to the Plaintiff’s retirement pension account. Therefore, the Defendant is obligated

B. The Defendant’s management evaluation performance rating is determined according to the result of management evaluation of the Defendant, and it is not paid in return for the provision of the Plaintiffs’ labor. Therefore, it cannot be deemed that it constitutes the basis for calculating the average wage.

3. Determination

A. Relevant legal principles

Article 48 (10) of the Act on the Management of Public Institutions is being paid according to the results of management performance evaluation by the Minister of Strategy and Finance based on the Act on the Management of Public Institutions (hereinafter referred to as the "Act on the Management of Public Institutions").

Article 27(4) of the Enforcement Decree of the same Act provides that “The Minister of Strategy and Finance may take follow-up measures, such as recommendation and request for personnel management or budgetary measures according to the results of the evaluation, and determination of the payment rate of bonuses, after deliberation and resolution by the Steering Committee.” The Ministry of Strategy and Finance annually announces the contents of the budget compilation for the public corporation and quasi-governmental institution, which include specific methods of calculating and paying the amount of management evaluation performance according to the standards established as follow-up measures of the evaluation results of the management performance evaluation. Accordingly, most public corporations and quasi-governmental institutions specifically stipulate the timing, method of calculation, payment conditions, etc. of the results of the evaluation of the management performance according to collective agreements or rules of employment. The amount of wages forming the basis for the calculation of average wages refers to money and valuables paid by the employer to workers in return for work, which are continuously and regularly paid to the workers, collective agreements, wage regulations, labor contracts, etc. The amount of average wages should be determined and paid to the employer in return for work (see, e.g., Supreme Court Decision 201312Da16.).

(b) Wages that constitute the basis for calculating average wages;

In light of the above legal principles, in light of the following circumstances that can be seen by comprehensively considering the purport of the entire arguments as a whole, it is reasonable to view that management evaluation performance wages are money and valuables that have been paid continuously and regularly in return for labor, which constitute the basis for calculating the average wage.

1) According to the Defendant’s remuneration regulations and the enforcement rules of the remuneration regulations, remuneration consists of the standard annual salary, performance-based performance-based incentives, and other wages, and management evaluation performance-based wages constitute wages as remuneration for work, such as that payment is made on a daily basis according to the actual working days, based on items corresponding to performance-based incentives.

2) According to the Defendant’s remuneration regulations, etc., the payment criteria, payment methods, timing, etc. are determined based on the premise that the Defendant has the obligation to pay the management evaluation performance rating to the Defendant, and the Defendant has continuously and regularly paid the amount of the management evaluation performance rating to the employees employed in the period subject to evaluation in accordance with the above remuneration regulations, etc. Therefore, there is no ground to regard the amount of the management evaluation performance rating as any contingent and temporary benefits that are merely favorable money and valuables or dependent

3) The payment rate according to the result of the Defendant’s management performance evaluation in the previous year.

Since the amount of payment is determined, the minimum payment rate and the minimum payment amount are not determined, and the amount is determined newly every year, it cannot be deemed that the management evaluation performance rate are paid temporarily or the occurrence of the cause for payment is uncertain.

4) Since 2012, since the minimum payment rate and the minimum amount of the performance evaluation rating of a public institution have not been determined, there may be cases where the management evaluation performance rating is not paid according to the results of the management performance evaluation of the affiliated institution. In fact, even though the Defendant was unable to receive the performance evaluation rating by receiving a DNA rating in the management performance evaluation in 2013, even if the performance rating was not received, it shall be deemed as the wages paid as the remuneration for labor in light of the proportion of the performance rating in the total amount of benefits, the actual status of the payment and the purport of the average wage system

5) Meanwhile, according to the evidence No. 3, Article 29 of the instant remuneration regulations and Article 16(1)3 of the Enforcement Rule of the Remuneration Regulations provides that management evaluation performance rating shall be excluded from the wages, which form the basis for calculating the average wage.

However, since the instant piece of performance falls under the wage which serves as the basis for calculating the average wage, even if the Defendant’s trade union or a majority of workers agree on the aforementioned provision, if the Defendant’s retirement pension charge calculated by excluding the management evaluation performance rating from the average wage falls short of the lower limit guaranteed from the Guarantee of Workers’ Retirement Benefits Act, the above provision shall be null and void (see Supreme Court Decision 2003Da40538, Dec. 11, 2003).

Article 20 (1) of the Guarantee of Workers' Retirement Benefits Act provides that "an employer who has established a defined contribution plan shall pay an amount equivalent to at least 1/12 of the total annual wages of a participant in cash to the account of the defined contribution plan in cash." However, in cases where the amount of money equivalent to wages, which serves as the basis for calculating average wages, is excluded from the total annual wages as stipulated in the above provision, the difference in the charges accrued therefrom is below the minimum limit stipulated in the above Act. Therefore, notwithstanding the above remuneration provision of the defendant, the management evaluation performance

C. Benefits of confirmation

Therefore, barring special circumstances, the Defendant is obligated to pay the amount equivalent to the accrued additional retirement pension contributions, including the management evaluation performance rating from the year 2016 to the year 2019, in each retirement pension plan account of the Plaintiffs who joined the fixed contribution plan, and as long as the Defendant contests the existence of the obligation to pay the aforementioned contributions, the benefit of confirmation is also recognized.

D. Sub-committee

The Defendant’s payment of the contributions to the account of the individual defined contribution plan of the employee by the end of each year is as mentioned above (Article 12(1) of the Guidelines for Operation of the Retirement Benefit System), and the amount equivalent to the amount of the additional contribution, including the amount of management evaluation performance, shall be as stated in the attached Form 2. The amount corresponding to the “additional accumulated amount” column in the attached Table

Therefore, the defendant has the obligation to pay each of the relevant money entered in the account for the defined contribution plan of the plaintiffs as retirement pension contributions, ① the additional amount to be accumulated in the year 2016 in the attached Table 2, and each of the relevant money stated in the "amount to be accumulated in the "amount to be accumulated in the year 2016" as of January 1, 2017, ② additional amount to be accumulated in the "amount to be accumulated in the year 2017" as of January 1, 2018, ③ additional amount to be accumulated in the "amount to be accumulated in the year 2018" as of January 1, 2019, ④ additional amount to be accumulated in the "amount to be accumulated in the "amount to be accumulated in the year 2019" from January 1, 2020 to the date of full payment, and to pay each interest for arrears calculated at the rate of 10% per annum as of January 1, 2020, and Article 11 of the Enforcement Decree of the same Act.

4. Conclusion

Therefore, the plaintiffs' claims shall be accepted in its entirety due to the reasons, and it is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Yellowia

Judges Lee Dong-young