[Plaintiffs, Appellees] Plaintiff 1 and 17 others, Attorney Bae Byeong-geun, Counsel for the Plaintiffs
[Defendant, Appellant] Korea Tourism Corporation, Attorney Jeon Bong-deok, Counsel for the Defendant
[Original Judgment] Seoul High Court Decision 76Na9, rendered May 19, 1976
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The first ground of appeal by the Defendant's counsel is examined.
According to the reasoning of the first instance judgment cited by the court below, the court below held that, under the Defendant Corporation's employee retirement allowance payment regulations and remuneration regulations, the total amount of remuneration, which serves as the basis for calculating average wages—the standard amount for calculating retirement allowance—refers to the amount including salary and other allowances, and, in light of the fact that bonus allowance is enumerated as one type of allowance, it is held that bonus allowance is included therein. The court below then found the fact that the Defendant Corporation, in fact, since its establishment, has paid a fixed amount of bonus allowance twice a year, in June and December, to all of its employees as consideration for labor for each six-month period from January to June and from July to December, and that, in particular, for several years before the Plaintiffs' retirement, the amount paid each time was fixed at 150 percent of the salary amount. Having established these facts, the court below, while noting that the Defendant Corporation's remuneration regulations set the base period for calculating average wages as the three months preceding the date on which the grounds for calculation arose, whereas the bonus allowance, even though it is paid once every six months as consideration for labor during the six months preceding the month of payment, nevertheless considered comprehensively the circumstances that the Plaintiffs received bonus allowance during the three-month period before their retirement (retirement on March 16, 1973), and that such bonus allowance was paid regularly twice a year, once every six months, and concluded that it was reasonable to include only the amount corresponding to three months' worth of the above bonus allowance in the calculation of average wages, which serves as the basis for calculating the Plaintiffs' retirement allowance. Upon examining this in conjunction with the relevant provisions of the Defendant Corporation's remuneration regulations and retirement allowance payment regulations, as well as the record, the judgment of the court below may be affirmed as justified. The argument that, as in the case of the Defendant Corporation, bonuses paid every six months, exceeding the preceding three months relevant to the calculation of average wages, should be entirely excluded from the calculation of average wages, which is the basis for calculating retirement allowance, and that the judgment below therefore violates Article 19 of the Labor Standards Act (근로기준법), is not well-founded and is without merit. There is also no material to find that the Plaintiffs' claim in this action constitutes an unlawful claim in violation of customary rules.
The second ground of appeal is examined.
The argument that the Defendant Corporation's bonus allowance is merely a gratuitous or commendatory payment and should therefore be excluded from the calculation of average wages is, as noted above, groundless in light of the interpretation of the concept of average wages as set forth in the Defendant Corporation's remuneration regulations and retirement allowance payment regulations, and in light of the fact that it is a type of wage paid regularly twice a year; the judgment of the court below to this effect is affirmed, and the fact that the payment date and payment rate are subject to variation is not material sufficient to alter this conclusion. This ground of appeal is without merit.
The third ground of appeal is examined.
The court below's holding—that even if the amount of retirement allowance actually paid to the Plaintiffs by the Defendant Corporation, based on the progressive rate adopted according to years of service as asserted by the Defendant, exceeds the minimum threshold for retirement allowance prescribed in Article 28 of the Labor Standards Act (근로기준법)—does not constitute grounds for denying the Plaintiffs' claim in this case for additional retirement allowance based on the Defendant Corporation's own regulations as discussed above, is justified. The Supreme Court decision cited by the Defendant concerns a case in which bonuses were excluded from the types of wages forming the basis for calculating average wages under the relevant regulations of the business concerned, and is therefore not applicable to the present case. The argument that the judgment below violates precedent is without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order, in accordance with the unanimous opinion of the participating judges.
Supreme Court Justice Lee Il-gyu (Presiding Judge), Hong Sun-yeop, Yang Byeong-ho, Kang An-hui