[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Hanjin Shipping Co., Ltd., Litigation Representative: Hanmi Joint Law Office, Attorney Yoo Kyung-hee and 8 others
[Judgment Below] Seoul Civil District Court Judgment 1993. 10. 14., 93Na12403
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Seoul Civil District Court.
[Reasoning]
We examine the Plaintiff's grounds of appeal.
1. Article 28, Paragraph 2 of the Labor Standards Act (근로기준법) (as amended by Act No. 3349 on December 31, 1980, and effective from April 1, 1981) provides that, in establishing a retirement allowance system, no discriminatory system shall be maintained within a single business. The legislative purpose of the above provision is to prohibit discrimination by maintaining different retirement allowance systems for different job types, positions, or industries within a single business, and to require the application of a single retirement allowance system. Meanwhile, Paragraph 2 of the Addenda to the same Act provides that where the rules of employment violate the above provision but the employer fails to amend them to conform to the Act (i.e., to unify the rules of employment) and report such amendment to the Minister of Labor by March 31, 1981, the retirement allowance system applicable to the largest number of employees within the relevant business shall be deemed applicable.
In light of the above statutory provisions and legislative purpose, if, as of April 1, 1981, different retirement allowance systems existed within a single business according to job type, position, or industry, then from that date onward, only the retirement allowance system applicable to the largest number of employees within the relevant business must be applied to all employees. Furthermore, if, after April 1, 1981, the rules of employment were amended to establish different retirement allowance systems according to job type, position, or industry within a single business, such amendment to the rules of employment, even if made with the consent of the employees, would be in violation of Article 28, Paragraph 2 of the Labor Standards Act and would have no legal effect.
2. In this case, examining the contents of the appellate brief as stated by the Plaintiff at the first oral argument date in the court below, as found in the record, it can be seen that the Plaintiff asserted the following: that, as of January 1, 1972, the Defendant company amended its rules of employment to change the retirement allowance payment method from a progressive rate system to a single (flat) rate system solely for shore-based employees (陸員, employees working on land), thereby causing two differentiated retirement allowance systems to coexist within the single business of the Defendant company—one for shore-based employees and one for seafarers (海員, employees working at sea); that, notwithstanding this, the Defendant company failed to unify the retirement allowance systems for shore-based employees and seafarers by March 31, 1981; that, therefore, even though the Plaintiff, who is a shore-based employee, joined the Defendant company on November 28, 1980, after the aforementioned amendment to the rules of employment, the retirement allowance system stipulated in the amended rules of employment could not be applied to the Plaintiff (the Plaintiff appears to be arguing that, since seafarers constitute the majority of employees within the Defendant company, the retirement allowance system for seafarers should be applied to the Plaintiff as well); and that, further, the amendment to the rules of employment dated April 1, 1982, which established a differentiated system regarding the retirement allowances of shore-based employees and seafarers, was likewise invalid as being in violation of Article 28 of the Labor Standards Act. If the facts are as asserted by the Plaintiff, then, in light of the legal principles set forth above, the rules of employment as amended on January 1, 1972, and April 1, 1982, should not be applied in calculating the Plaintiff's retirement allowance.
Nevertheless, the court below, without rendering any judgment on the Plaintiff's above assertion, calculated the Plaintiff's retirement allowance by applying the rules of employment as amended on January 1, 1972, and April 1, 1982, based solely on the reasons stated in its judgment. This constitutes an illegality of omission of judgment, and it is clear that such illegality affected the judgment. Therefore, the argument pointing out this error is well-founded.
3. Accordingly, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below, in accordance with the unanimous opinion of the participating Justices, as stated in the Order.
Justice Ji Chang-kwon (Presiding Justice), Cheon Kyung-song (Justice in charge), Ahn Yong-deuk, Shin Seong-taek