[Plaintiff, Appellant] Park Deok-geun, Litigation Counsel: Attorney Kwak Byung-mun
[Defendant, Appellee] Mokpo City, Represented by Mayor Beom Taek-gun
[Judgment of the Court Below]
Gwangju High Court, Judgment of September 18, 1980, Case No. 79Na517
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal submitted by the Plaintiff's litigation counsel are examined.
According to the reasoning of the judgment below, the Plaintiff served as a miscellaneous-post employee (잡급직) of the Defendant City for 21 years, from January 1, 1955 to December 31, 1975, and then retired; thereafter, the Plaintiff was employed as an employee (고용원) of the Defendant City and worked from January 1, 1976 to May 16, 1978, and then retired. For the retirement allowance corresponding to the period from January 1, 1976 to May 16, 1978, the Plaintiff received a pension pursuant to the Public Officials Pension Act (공무원연금법). However, since the Public Officials Pension Act did not apply to the period from January 1, 1955 to December 31, 1975, the Plaintiff sought payment of the retirement allowance corresponding to that period pursuant to the Labor Standards Act (근로기준법).
In response, the court below held that the Defendant City is obligated to pay the Plaintiff, who served as a miscellaneous-post employee and then retired, a retirement allowance pursuant to Articles 28 and 19 of the Labor Standards Act. In calculating the average wage for the purpose of computing the amount thereof, the court below took the total amount of wages paid to the Plaintiff during the three months preceding December 31, 1975, the date of the Plaintiff's retirement, as the basis and calculated the average wage as 1,473 won 91 jeon. The court below then determined that the amount of 928,563 won (1,473.91 × 30 × 21), calculated at 30 days' wages per year for the said 21-year period, is the amount of the retirement allowance which the Defendant City must pay to the Plaintiff for the said period.
Upon examination, as noted above, the Plaintiff served as a miscellaneous-post employee of the Defendant City for 21 years, from January 1, 1955 to December 31, 1975, and then retired, and was thereafter newly employed and appointed as an employee of the Defendant City, working from January 1, 1976 to May 16, 1978, and then retired; and it is stated that for the period of service from January 1, 1976 to May 16, 1978, the Plaintiff was subject to the Public Officials Pension Act and received a pension accordingly. Since the Plaintiff seeks payment of the retirement allowance for the aforementioned 21 years of service, absent special circumstances, in calculating such retirement allowance, the date of retirement, namely December 31, 1975, should be used as the basis, and the average wage should be calculated based on the Plaintiff's total wages for the three months preceding that retirement date of December 31, 1975. It would not be appropriate to use May 16, 1978, the date on which the Plaintiff retired after being reappointed as an employee and working thereafter, as the basis, nor to use the Plaintiff's total wages for the three months preceding that date as the basis for calculating the average wage. This being so, the court below's calculation of the Plaintiff's retirement allowance in the same manner as above, and to the same effect, is justified, and it cannot be said that there is any illegality therein, as argued in the grounds of appeal, arising from a misunderstanding of the legal principles under Articles 18 and 19 of the Labor Standards Act resulting in contradictory reasoning. Therefore, the argument is without merit.
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Supreme Court Justice Kim Ki-hong (Presiding Justice), Han Hwan-jin, Kim Yong-cheol