[Plaintiff, Appellee] Seo Jeong-uk and 21 others
[Defendant, Appellant] Korea Coal Corporation (대한석탄공사)
[Judgment of the Lower Court]
First instance: Seoul Civil District Court; Second instance: Seoul High Court, Judgment rendered March 26, 1969, Case No. 68Na1803
[Order]
The part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning]
The Court renders judgment on the grounds of appeal submitted by the Defendant's litigation representative.
Under the interpretation of Articles 18 and 19 of the Labor Standards Act (근로기준법), the average wage that serves as the basis for calculating retirement pay under Article 28 of the same Act refers to the amount obtained by dividing the total sum of wages, salary, and other monetary benefits (regardless of their designation) paid as compensation for labor during the three-month period preceding the date of retirement of a retired worker, by the total number of days in that period. On the other hand, the annual paid leave prescribed under Article 48 of the same Act refers to leave granted by the employer, at the time requested by a worker who has worked without absence for one year or has attended at least 90% of the working days, for the number of days prescribed in paragraphs 1 and 2 of the same Article, while paying the ordinary wage or average wage under paragraph 3 thereof. Accordingly, even if a worker, without using such leave, continued to work and received an allowance for holidays corresponding to the number of leave days pursuant to Article 46 of the same Act, and even if the timing of such payment fell within the three-month period preceding the date of retirement, such allowance was compensation for labor performed during the one-year period that formed the basis for the determination of the leave entitlement, and it cannot necessarily be said to have been compensation for labor performed during the period in which it was actually paid (only where part of the one-year period forming the basis for determining the leave entitlement falls within the three-month period preceding retirement would part of said allowance take on the character of compensation for labor performed during that included period). According to the judgment below, the court below, in calculating the average wage that serves as the basis for computing the Plaintiffs' retirement pay, with respect to the annual paid leave allowance which the Plaintiffs alleged to have been paid during the three-month period preceding their date of retirement (the judgment below also acknowledged the fact of such payment), without conducting any examination or making any determination as to whether it constituted compensation for labor performed during the three months preceding retirement, treated the allowance as compensation for labor performed during the one-year period forming the basis for the determination of the leave entitlement, and accordingly added 3/12 of that allowance to the total wages for the said three-month period, and divided that sum by the total number of days in that period. It cannot be said that there was no illegality in such reasoning, in the form of insufficient examination resulting from a misunderstanding of the applicable legal principles, inadequate reasoning, or omission of judgment, and such illegality must be deemed to have affected the outcome of the judgment. Accordingly, finding the argument raised in this regard in the grounds of appeal to be well-founded, this Court, by the unanimous opinion of all participating Justices, renders judgment as stated in the Order pursuant to Articles 406 and 400 of the Civil Procedure Act (민사소송법).
Supreme Court Justice Na Hang-yun (Presiding Judge), Son Dong-uk, Bang Sun-won, Yu Jae-bang