(a) A claim for retirement allowance of a daily employed worker who has been actually employed continuously without a brief;

B. Requirements for an employer’s tort to seek damages equivalent to retirement allowances up to the maximum working age

(c) Criteria for calculating lost profits due to an accident;

A. In the form of a worker, if it is reasonable to view that the worker is a daily worker even if he/she is a daily worker and is a regular worker without simple employment relationship, the employer must pay the retirement allowance prescribed by the rules of employment and remuneration regulations corresponding to the worker.

B. In calculating the amount of damages for a worker’s retirement allowance due to an employer’s unlawful act, it is insufficient to recognize the period of operation of the worker simply to deem that the worker sustained damages equivalent to retirement allowances under the Labor Standards Act that can be earned by his/her employee from his/her work in the employer company until the end of the age of 55, which is the maximum working age. Whether there exists a de facto employment contract between the employee and the employer company as to the period of employment, or on the premise that there is a provision on the rules of employment and remuneration of the employer company. In particular, when there is no formal employment contract between the employee and the employer, it should be determined when the employment contract actually continues.

C. Average wages under the Labor Standards Act are not the standard for calculating damages due to actual profit.

A. Article 28 of the Labor Standards Act. Article 763 of the Civil Act

A. Supreme Court Decision 76Da1812 delivered on September 14, 1976, Supreme Court Decision 77Da481 delivered on July 26, 197

Plaintiff

Dong Asia Construction Industry Corporation (Attorney Lee Young-gu, Counsel for defendant-appellant)

Seoul High Court Decision 82Na2672 delivered on March 10, 1983

The part of the lower judgment against the Defendant regarding the loss of retirement allowances is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed, and the costs of the appeal against this part are assessed against the defendant.

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

According to the reasoning of the judgment below, the court below acknowledged the following facts, based on the evidences, that the plaintiff was employed by the non-party who was awarded a subcontract for the steel frame construction part of the defendant company's subway construction work from early February 1980 to work for the non-party who was awarded a subcontract, and was unable to work for the same occupation as the injury caused by the accident of this case from early February 30, 1981, and the defendant company purchased industrial accident insurance for the plaintiff as the business owner of the plaintiff, and continuously paid wages to the plaintiff two times a month in the form of a daily day, as well as providing all necessary equipment and facilities for the above construction work, and supervised the above non-party through the above non-party. In this case, even if the above non-party, a subcontractor between the defendant company and the plaintiff, had a contract of employment with the defendant company, it should be viewed as a subordinate, continuous relationship between them, and as a result, the defendant company bears the obligation to pay retirement allowances under the Labor Standards Act to the plaintiff as the employer of the plaintiff.

Examining the judgment below in light of the records, it cannot be found that there was an error of misconception of the facts in violation of the rules of evidence in the process of finding the facts, and in addition, as recognized by the court below, in the case where it is a daily worker even though it is a lawful one, in the form of the case where it is reasonable to view that the daily relationship continues to be a permanent worker, the defendant company should pay the retirement allowance prescribed therein to the plaintiff, corresponding to his employees under the rules of employment and the rules of remuneration. Therefore, in this regard, the court below's decision that recognized the defendant company's obligation to pay the retirement allowance in this case against the defendant company is just, and there is no error of law by misunderstanding the facts against the rules of evidence or by misunderstanding the legal principles under Article 28 of the Labor Standards Act, or by misunderstanding the legal principles

2. We examine the second ground for appeal.

According to the reasoning of the judgment below, in calculating the amount of damages per retirement allowance due to the accident in this case against the plaintiff, the court below recognized the fact that the plaintiff's average wage was 15,224 won at the time of retirement, and recognized the plaintiff's actual retirement allowance for 29 years from the beginning of February 1980, when the plaintiff was employed at the work site of the defendant company until the completion of 55 years of age, the maximum working age of the defendant company (the date as requested by the plaintiff, left September 30 or September 30), which is the maximum working age of the defendant company, for 13,245,654 won (15,224 won x 89 x 30 days x 29 years) under the Labor Standards Act, and recognized the plaintiff's actual retirement allowance for 13,245,654 won (15,224 won x 89 days x 29 years).

However, in order for the plaintiff to be deemed to have suffered loss due to retirement allowance under the Labor Standards Act, which can be gained by serving in the defendant company until the end of 55 years of age, the term of operation is insufficient simply to recognize the plaintiff's period of operation. Whether there exists a de facto employment contract between the plaintiff and the defendant company, or there is a provision on the rules of employment and remuneration regulations of the defendant company. In particular, in the case of this case, if the plaintiff and the defendant company fail to perform a formal employment contract as in the case of this case, it should be viewed that the employment contract will actually continue until the end of the above subway corporation constructed by the defendant company (under the records, unless there are special circumstances, the period of employment of the plaintiff appears to be reasonable until the completion of the above subway corporation, which was operated by the defendant company). The court below's decision that calculated the retirement allowance in this case based only on the plaintiff's operating period has not been deliberated at all, or affected the judgment by misunderstanding the legal principles on the calculation of retirement allowances, which points out this issue.

3. We examine the ground of appeal No. 3.

According to the court below's decision, the court below acknowledged the facts that the plaintiff's income was 506,090 per month at the time of the accident of this case based on its macroficial evidence, and calculated the plaintiff's actual profit amount due to the accident of this case. In light of the records, the above fact-finding of the court below is just, and there is no error of mistake of facts due to misconception of facts due to violation of the rules of evidence such as theory of lawsuit, and there is no ground to find that there is any error of mistake of facts due to misconception of facts due to violation of the rules of evidence such as theory, and since the average wage is not a standard for calculating damages equivalent to the lost profit (see Supreme Court Decision 77Da481 delivered on July 26, 197), since the monthly income based on the lost profit as recognized by the court below

4. Therefore, among the part against the defendant in the judgment of the court below, the defendant's appeal as to the loss of retirement allowance in the part against the defendant is with merit, and since the appeal as to the remaining part is without merit, the part of the judgment below as to the loss of retirement allowance in the part against the defendant is reversed and remanded to the Seoul High Court which is the court below. The defendant's remaining appeal is dismissed, and the costs of appeal as to the dismissal of appeal in the part against the

Justices Park Jong-dong (Presiding Justice)