[평균임금정정신청거부처분취소 ][하집1999-1, 661]
In a case where the wage paid to the worker is indicated differently from the actual wage paid to the worker in the documents submitted externally by the employer, such as the tax office, whether the wage specified in the above documents should be
According to Article 4 subparag. 2 of the Industrial Accident Compensation Insurance Act and Articles 18 and 19 of the Labor Standards Act, wages, which serve as the basis for calculating average wages, are all money and valuables paid, regardless of their titles, by the employer, to workers as workers subject to work (subject to work). Thus, even if the employer entered wages for workers, such as a tax office, etc., which are externally submitted by the employer differently from the actual ones, such circumstance alone cannot be deemed as the amount entered in the documents submitted
Article 18 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997), Article 18 (see current Article 18), Article 19, and Article 19 (see current Article 19), Article 4 subparagraph 2 of the Industrial Accident Compensation Insurance Act
Supreme Court en banc Decision 97Da56235 delivered on February 9, 1999 (Gong1999Sang, 451) and Supreme Court en banc Decision 97Da5015 delivered on May 12, 199 (Gong199Sang, 1144)
Kim Jong-hwan (Attorney Oba-hwan, Counsel for defendant-appellant)
Korea Labor Welfare Corporation
1. The defendant's disposition rejecting an application for correction of average wages against the plaintiff on January 12, 1999 shall be revoked.
2. The costs of the lawsuit are assessed against the defendant.
The same shall apply to the order.
1. Details of the disposition;
The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings as to Gap evidence 1, 2, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-5, Eul evidence 4 and 7.
A. On December 5, 1996, the Plaintiff worked for the Hansan medicine Co., Ltd. (hereinafter “Nonindicted Company”) and was killed on the part of the deceased on the part of the deceased on December 14, 1996, the Plaintiff filed a claim for the payment of survivors’ benefits and funeral expenses to the Defendant.
B. Based on the wage ledger from September to December 12, 1996 submitted by the non-party company, the Defendant determined the daily average wage of the deceased as KRW 35,67.01 on November 11, 1998 and paid KRW 4,280,040 to the Plaintiff as the lump sum survivors’ compensation benefits, KRW 46,367,110, and funeral expenses for the Plaintiff.
C. On December 28, 1998, the Plaintiff applied for the correction of the higher amount of the average wage on the ground that the Deceased received the bonus of KRW 2,00,000,000 per month and KRW 600,000 per annum. However, on January 12, 1999, the Defendant rendered the instant disposition rejecting the Plaintiff’s application on the ground that the initial average wage determination was reasonable.
2. Whether the disposition is lawful;
A. First, we examine the monthly wage.
In the statement of payment of salary (No. 4-1 to No. 3) written by the non-party company, the fact that the monthly salary of the deceased was written in KRW 600,000, KRW 150,000, KRW 150,000, KRW 250,000, KRW 250,000, KRW 500, KRW 1500,000, KRW 1500, and KRW 1,500,000, KRW 600,000, and KRW 600,000 from September to November, 196, and KRW 50,000, KRW 500,000, and KRW 300,000 for hours and duties that were uniformly paid from September to November, etc., are not recognized in light of the above facts.
Rather, considering the evidence Nos. 4 and 5-1 through 3 of the evidence Nos. 5 and the testimony of the witness knife, the non-party company has business employees and employees (in-depth employees). The business employees purchased drugs from the non-party company and sold them to the pharmacy, and did not receive any benefits from the non-party company, and the non-party company was registered as an employee of the non-party company, and the non-party company's salary was entered in the statement of payment on the documents. Although the employees received benefits from the non-party company, they were entered below the actual wage paid to the non-party company, and the deceased's salary payment statement was entered below the actual wage paid to the non-party company, and the fact that the non-party company was paid the non-party company's operating director the amount of KRW 600,00,000, the non-party company's allowance of KRW 150,000,000,000.
Meanwhile, according to Article 4 subparag. 2 of the Industrial Accident Compensation Insurance Act, and Articles 18 and 19 of the Labor Standards Act, wages, which serve as the basis for calculating average wages, are all money and valuables paid, regardless of their titles, by the employer, to workers as workers subject to work (subject to work). Thus, even if the amount of wages for workers submitted externally, such as a tax office, etc., was stated differently from the actual ones, such circumstance alone cannot be deemed as the amount indicated in the documents submitted to the worker. Therefore, in this case, the monthly wage, which serves as the basis for calculating average wages of the deceased, is 2,00,000 won.
B. As to the following bonus:
The plaintiff asserts that the deceased was paid a bonus of 600,000 won per year, but there is no evidence to acknowledge this. In addition, in light of the fact that the witness himself was paid a bonus of 200% per annum on three occasions, the deceased is also deemed to have received a bonus of 200% per annum on three occasions, but the above testimony alone is insufficient to recognize that the deceased was paid a bonus of 4,000,000 won per annum from the non-party company, and there is no other evidence to acknowledge this otherwise.
3. Conclusion
Thus, the defendant's calculation of the original average wage is illegal, since it is calculated based on a lower amount than the actual monthly wage of the deceased (However, this is less than the amount claimed by the plaintiff, as seen in the above 2.b.). Thus, the plaintiff's claim is justified and acceptable.
Judges Lee Jae-sung (Presiding Judge)