[Plaintiffs, Appellees] Plaintiff 1 and 6 others (Attorney Woo Jeong-gwon for the Plaintiffs)
[Defendant, Appellant] Korea National Housing Corporation (Attorney Kim Su-ryong for the Defendant)
[Judgment Below] Seoul High Court Decision 96Na46783 rendered on May 15, 1997
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The Defendant's attorney's grounds of appeal are examined.
According to the reasoning of the judgment below, the court below, based on the evidence it adduced, found the following facts: the Plaintiffs joined the Defendant Corporation around 1970 to 1977 as indicated in the attached list and retired due to age limit in 1993; with respect to the payment of retirement allowances to its employees and officers, the Defendant Corporation's Rules of Employment (취업규칙), enacted and enforced since August 30, 1967, provided in Article 58 that "retirement allowances shall be paid to retiring employees in accordance with the Retirement Benefit Regulations (퇴직급여규정)"; the separate Retirement Benefit Regulations enacted pursuant to that delegation provided in Article 4 that the amount of retirement benefit shall be calculated by multiplying the monthly salary (월봉) at the time of retirement by a payment rate that increases progressively according to years of service; and Article 3 defined "monthly salary" as meaning the average wage (평균임금) at the time of retirement. It was also found that Article 15 of the Remuneration Regulations (보수규정) then applicable provided that the average wage forming the basis for calculating retirement allowances shall be one-third of the sum of the basic salary, monthly allowances, and monthly leave allowance paid during the last three months prior to the date of retirement, plus an amount equivalent to 3/12 of the annual leave allowance paid in the previous year and an amount equivalent to 3/12 of the bonus allowance paid during the one year prior to retirement; and Article 13 provided for eleven types of allowances, namely: ① technical allowance, ② overtime allowance, ③ construction allowance, ④ holiday work allowance, ⑤ night work allowance, ⑥ monthly/annual leave allowance, ⑦ bonus allowance, ⑧ cashier's allowance, ⑨ hazard allowance, ⑩ remote area allowance, and ⑪ daily/night duty allowance. However, around the end of 1980, having received instructions from the Government to lower the level of retirement allowance payments, the Defendant Corporation amended the pre-amendment Retirement Benefit Regulations by lowering the payment rate and also limiting the concept of "monthly salary" to one-third of the sum of the basic salary and the commonly paid monthly allowances (construction allowance, overtime allowance, holiday work allowance, monthly leave allowance) paid during the last three months prior to the day immediately preceding retirement, plus an amount equivalent to 3/12 of the annual leave allowance and bonus allowance paid during the one year immediately preceding retirement; this amendment took effect on January 1, 1981, and around that time, a family allowance was newly established under Article 13 of the Remuneration Regulations and has been paid since then. Having found these facts, the court below premised that since the above amendment of the Defendant Corporation's retirement allowance regulations was disadvantageous to the employees and was made without obtaining the consent of the group of employees, the pre-amendment retirement allowance regulations should apply to the Plaintiffs. The court below then rejected the Defendant's argument that the average wage prescribed in the pre-amendment retirement allowance regulations does not mean the average wage under the Labor Standards Act (근로기준법), and that therefore the family allowance should be excluded from the average wage forming the basis for calculating the Plaintiffs' retirement allowances. In rejecting this argument, the court below reasoned that, absent special circumstances, the term "average wage" as used in the Remuneration Regulations and the Retirement Benefit Regulations, both enacted based on the same Rules of Employment at the same workplace, should be interpreted identically; that, as noted above, the amended Retirement Benefit Regulations themselves enumerate the allowances included in the monthly salary, so that in calculating retirement allowances under those regulations, the allowances constituting the average wage may be interpreted as being limited to those enumerated therein; however, the pre-amendment Retirement Benefit Regulations, as noted above, merely provided that the monthly salary forming the basis for calculating the retirement benefit amount means the average wage at the time of retirement, without enumerating in a limiting manner the various allowances constituting the concept of monthly salary, and instead specified the average wage and the monthly allowances constituting part of the average wage in the separate Remuneration Regulations, which monthly allowances could later be changed by deletion or addition through amendment of the Remuneration Regulations; and since the Plaintiffs received the family allowance at the time of retirement due to its addition through the amendment of the Remuneration Regulations, and since the family allowance was uniformly and regularly paid every month to Defendant Corporation employees meeting certain requirements, it should be included in the monthly salary (average wage).
Whether the "average wage" prescribed in the Defendant Corporation's pre-amendment Retirement Benefit Regulations and Remuneration Regulations, etc. is the average wage under the Labor Standards Act, and whether the family allowance is included in the "monthly allowances" constituting part of the average wage, are matters to be determined through objective interpretation of the above regulations; however, in making such interpretation, the meaning should be discerned by comprehensively examining various circumstances, including the Defendant Corporation's payment practice based on the above regulations and the background and content of the amendment of the above regulations.
However, among the allowances enumerated in Article 13 of the pre-amendment Remuneration Regulations, ⑪ the daily/night duty allowance is in the nature of reimbursement for actual expenses such as meal costs incurred on the day of daily/night duty, and is difficult to regard as consideration for labor (see Supreme Court Decision 90Daka10312 rendered on November 27, 1990); therefore, the average wage under Article 15 of the pre-amendment Remuneration Regulations, which includes even such an allowance, and the average wage under Article 3 of the pre-amendment Retirement Benefit Regulations, which is interpreted to have the same meaning, cannot be regarded as the average wage under the Labor Standards Act.
Moreover, the amended Retirement Benefit Regulations limit the portion corresponding to "monthly allowances" among the pre-amendment average wage to "commonly paid monthly allowances (construction allowance, overtime allowance, holiday work allowance, monthly leave allowance)," and according to the record, although the family allowance has been included as one of the allowances under the Remuneration Regulations currently in force since around the time the Retirement Benefit Regulations were amended on January 1, 1981, it can be recognized that the Defendant Corporation has never, from before the amendment of the Retirement Benefit Regulations until now, included the family allowance in the average wage (monthly salary) forming the basis for calculating retirement allowances; and it can also be recognized that even calculating the retirement allowance based on the average wage excluding the family allowance from the Plaintiffs' remuneration amount and applying the progressive payment rate under the pre-amendment retirement benefit standard, the resulting amount is greater than the retirement allowance calculated by including the family allowance in the average wage and applying the standard under Article 28(1) of the former Labor Standards Act (before its amendment by Act No. 5245 of December 31, 1996). Considering the above points comprehensively, the "monthly allowances" constituting part of the average wage under Article 15 of the pre-amendment Remuneration Regulations should be interpreted as referring only to the allowances prescribed at that time in Article 13 of the same Remuneration Regulations, and accordingly, it is reasonable to view that the family allowance is excluded from the average wage (monthly salary) forming the basis for calculating the Plaintiffs' retirement allowances.
This Court has already ruled to this effect in Supreme Court Decision 96Da23863 rendered on October 25, 1996. Meanwhile, this Court's en banc Decision 93Da26168 rendered on July 11, 1995 appears to have ruled to a seemingly contrary effect; however, this is attributable to the fact that in the case of 93Da26168, the Defendant had, up to the court below, only argued that the plaintiff's retirement allowance should be calculated according to the post-amendment Retirement Benefit Regulations, and only newly raised, for the first time at the appellate stage, the argument that the average wage under the pre-amendment Retirement Benefit Regulations differs from that under the Labor Standards Act, such that the Defendant's said argument was not accepted as a legitimate ground of appeal. Therefore, in the present case, where the argument that the average wage under the pre-amendment Retirement Benefit Regulations differs from that under the Labor Standards Act has been raised from the court below onward, a different conclusion is inevitable.
Nevertheless, the judgment below, for the reasons stated therein alone, determined that the family allowance is included in the average wage (monthly salary) under the pre-amendment Retirement Benefit Regulations, and in doing so, erred by misunderstanding the legal principles concerning the average wage (monthly salary) under the pre-amendment Retirement Benefit Regulations, which error affected the outcome of the judgment. The argument pointing out this error is therefore well-founded.
Accordingly, the judgment below is reversed, and the case is remanded to the court below, with the unanimous agreement of the Justices participating, as set forth in the Order.
Justice Song Jin-hoon (Presiding Justice), Cheon Gyeong-song, Ji Chang-gwon (Justice in Charge), Shin Seong-taek