[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Samhui Tongun Co., Ltd., Attorneys Kim Du-hyeon and 1 other, Counsel for the Defendant
[Original Judgment] Incheon District Court Decision 90Na1939 rendered on October 19, 1990
[Order]
The original judgment is reversed and the case is remanded to the Incheon District Court Panel Division.
[Reasoning] As to the grounds of appeal,
According to the reasoning of the original judgment, the court below premised that a retirement allowance claim already arises during the continuation of the employment relationship, and that only its due date is fixed at the uncertain time of retirement; and on that basis, the court below determined that in a case such as this one, where there is a period of normal work and a period of sick leave or leave of absence, the retirement allowance must be the sum of amounts calculated separately for each period. The court below then calculated the retirement allowance in this case using, for the former period, the average wage as of the expiration of that period, and for the latter period, the ordinary wage at the time of retirement pursuant to Article 19, Paragraph 2 of the Labor Standards Act (근로기준법).
However, this Court has rejected the ground of appeal that is the same as the view of the court below regarding the time when a retirement allowance claim arises, and has held that "as long as the labor contract continues, there is no room for the employer's obligation to pay retirement allowance to arise, and such obligation arises only when the labor contract is terminated" (see this Court's Decision 73Da278, rendered October 10, 1973), and this has been this Court's consistent position (see this Court's Decisions 74Da1840, rendered July 22, 1975, and 77Da1137, rendered September 28, 1977).
Accordingly, the determination of the original judgment is contrary to the above precedents of this Court and has affected the outcome of the judgment; therefore, the ground of appeal pointing this out is well-founded, and the original judgment cannot avoid reversal without the need to examine the remaining grounds of appeal.
Accordingly, the Justices unanimously agree to reverse the original judgment and remand the case to the court below for further trial and determination, and hereby render judgment as stated in the Order.
Justice Yoo Young-cheol (Presiding Justice), Park U-dong, Bae Seok, Kim Sang-won