[2] The case holding that the court below erred in the misapprehension of legal principles in holding that the above snow and stone bonus, etc. constitutes ordinary wages, in case where the issue was whether the snow and stone bonus paid to the employees belonging to Gap corporation constitutes ordinary wages, and the annual leave bonus, Kim Mump, gift, date subsidy, personal pension subsidy, organization insurance premium, etc.

(B) The term “fixed wage” refers to a minimum amount of wage that an employee who has worked on a voluntary day regardless of the name of the wage, is obligated to be paid for the daily work, even if he/she retires on the next day. As such, if an employee provides contractual work on a voluntary day, regardless of whether the employee is obligated to meet additional terms and conditions, or the amount of the wage determined in advance is fixed. Here, the term “the condition” refers to the condition that the employee has not yet been determined at the time of providing overtime, night, or holiday work on a voluntary day, which is not yet determined as to the fulfillment of the contractual work at the aforementioned time, such as having a specific career or having a certain continuous work period, it does not interfere with the recognition of fixedness, but it is difficult to view that the employee has the nature of the contractual work to be paid at the specified time, regardless of whether the employee had provided a contractual work, and thus, it is difficult to determine that the employee has the nature of the wage to be paid at all on a voluntary day or on a certain day without any specific terms and conditions.”

[Concurring Opinion by Justice Kim Chang-suk] (A) Wages that can be included in ordinary wages are the wages that are the remuneration for the ordinary labor, not the total labor, but the wage is the remuneration for the ordinary labor. Whether certain wages are the remuneration for the ordinary labor is determined by the intention of the labor and management objectively confirmed. Generally, there is no doubt that including the basic wage and the allowances that are paid at intervals of less than one month as the remuneration for the ordinary labor is included in the ordinary wage so far as it can be viewed as the labor and management agreement or the labor and management practice. Therefore, in principle, it is interpreted that the ordinary wage includes only the basic wage and the allowances that are paid at a period of less than one month, and barring any special circumstance, the interpretation that the bonus or allowances paid at a period of more

(B) Whether a certain wage can be included in ordinary wages is determined, in essence, by whether the wage is the price for the ordinary work (fixed work) or is the price for the total work. Whether a certain wage is not a regular, uniform, or fixed payment is determined on the secondary basic date of determining whether a certain wage has the formal nature of ordinary wages.

[2] In a case where the issue is whether the snow and drilling bonus paid to the employees employed by Gap corporation as well as the annual leave bonus, Kim Jong-strawner, gift, date subsidy, personal pension subsidy, and group insurance premium constitutes ordinary wages, the case holding that the judgment below erred by misapprehending the legal principles on the ground that since Kim Jong-pon, which determined the amount of payment after a labor-management consultation, is not fixed wage, and since other snow and drilling bonuses, etc. were not paid to retired workers before the payment date, there is room to view that there was an explicit or implied agreement or such practices were established, which add the conditions that would serve as the date of payment between labor and management, to the qualification requirements for receiving the wage that would serve as the date of payment between labor and management.

1. Legal principles concerning ordinary wages

The standard for calculating premium pay for overtime, night, and holiday work, pre-announcement of dismissal, annual leave allowance, etc., and the minimum amount of average wage are money and other valuables agreed to be paid in return for contractual work (total work in the case of a contractor) ordinarily provided by an employee during contractual work hours, and which are regularly, uniformly, and fixedly paid. Wages paid at a period exceeding one month may be included in ordinary wages if it is regularly, uniformly, and fixedly paid.

In addition, fixed wage refers to “minimum wage that a worker who has worked on a voluntary day regardless of the name of the wage, regardless of the title of the wage, retires on the following day, and is entitled to receive a fixed and conclusive payment in return for the daily work.” Thus, if an employee provides contractual work on a voluntary day, regardless of the fulfillment of additional conditions, it can be deemed that the payment is planned to be made as a matter of course and the amount determined in advance is fixed.

Here, the condition stated in this context refers to a condition that is not yet determined at the time of providing overtime, night, or holiday work on a voluntary day. As such, if a worker has a specific career or is added under the factual basis of king, which has already been determined at the above time, such as that it is during a certain continuous service period, it does not hinder the recognition of fixedness, but the wage, regardless of whether or not the worker has provided a contractual work, which is to be paid only to the worker in office at the specified time, is eligible for the payment of wages at that specified time. Such wages are not paid to the person who has provided his/her work at the specified time, but are generally paid without asking the contents of the provision of his/her work at the specified time. If a wage is paid on such condition, it is difficult to view that the wage has the nature of remuneration for the so-called “fixed work”, and even if the worker provided his/her work on a voluntary day, it is difficult to deem that the worker has the nature of the wage at night prior to the specified time, and thus, it should be deemed that the worker has provided his/her work at all on voluntary day.

2. Judgment of this case

A. According to the reasoning of the judgment of the court of first instance, the court below, citing the judgment of the court of first instance, determined that all of the wages, which were regularly, uniformly, and regularly paid in return for work, were ordinary wages under the Labor Standards Act.

B. Wages under the Labor Standards Act are all money and valuables that an employer pays to an employee as remuneration for work, and if the employer is continuously and regularly paid to an employee and the employer is obligated to pay for such payment through collective agreements, rules of employment, wage rules, employment contracts, labor contracts, labor practices, etc., regardless of the pretext thereof (see Supreme Court Decision 2011Da20034, Feb. 9, 2012, etc.).

Therefore, the court below is just in admitting the judgment of the court of first instance to determine that the gift of this case, the date-of-date subsidy, the personal pension subsidy, and the group insurance premium paid periodically and uniformly to the employees belonging to the defendant constitute wages, and there is no error of law by misunderstanding the legal principles as to the concept and requirements of wages

C. However, it is difficult to accept the lower court’s determination on the grounds indicated in its reasoning that the instant snow, stone, bonus, etc. fall under ordinary wages on a regular, uniform, and fixed basis.

1) First, we examine the instant Kim Jong-min.

Considering that the ordinary wage functions as the base wage for calculating the premium pay paid when providing labor exceeding contractual work hours, the payment and the payment must be determined in advance before the worker actually provides overtime, night, or holiday work. Here, the payment and the payment are determined in advance for a certain amount of ordinary wage means that it is anticipated to be paid as a matter of course when providing contractual work on a voluntary day.

However, according to the reasoning of the lower judgment and the record, the collective agreement concluded between the Defendant and the labor union provides that “the company shall pay Kim Jong-chul, and the amount paid shall be paid after a labor-management consultation.” Accordingly, the instant Kim Jong-min was determined on the basis of a labor-management consultation immediately before the payment was made. From 2007 to 2009, and 240,000 won were determined in 20,000 won. As such, if the amount is determined after the fact without any objective criteria for determining the amount of payment, then without the labor-management consultation, it cannot be deemed that the amount of payment was determined in advance. Accordingly, the instant Kim Jong-min cannot be deemed as ordinary wages, and thus, it cannot be deemed as constituting a fixed wage.

Nevertheless, the lower court determined that the instant Kim Jong-min was a ordinary wage on the ground that he was paid to his employees, other than temporary retirees and temporary watchers, regardless of actual work performance. In so doing, the lower court erred by misapprehending the legal doctrine on ordinary wages, thereby adversely affecting the conclusion of the judgment.

2) Next, we examine the remainder of the wages, including the instant snow and stone bonus.

A) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ① the Defendant’s bonus payment rules provide that “The date of payment of bonuses shall be February, April, June, August, August, October, October, October, and New Year’s Year’s Year’s Year’s Day, and the payment date shall be separately determined. The period eligible for bonus payment shall be two months per month from the month preceding the month of the payment.” Article 6 provides the payment date and the payment period of bonus. Article 6 provides for the payment period of bonus, the bonus rate for new workers and those who are reinstated after long-term retirement, the treatment of retired workers, etc. ② According to the above payment standards, where new workers or those who are reinstated after long-term retirement, the payment period of bonus shall be 10% if they have worked for less than two months, 70% if they have worked for less than one month, and 30% if they have not been paid for less than 15 months in the case of those who have worked for less than 15 months in the case of those who have not been paid the bonus.

As seen earlier, wages, regardless of whether or not an employee has performed a contractual work, which are to be paid only to an employee employed on the payment date or at a specific time, shall not be deemed a fixed wage, as well as not having the nature of the contractual work. Furthermore, whether a certain wage has such nature shall be determined in accordance with the contents stipulated in the relevant employment contract, collective agreement, or employment rules, and in cases where there is no explicit provision in the employment contract, etc. or its contents are unclear, the determination shall be made by comprehensively taking into account the objective circumstances, such as the nature of the wage

On the other hand, the rules of employment stipulate the rules on working conditions, such as service regulations and wages of workers who are applied uniformly to the entire workers of the relevant business, and must be interpreted generally and reasonably to the parties concerned, such as the employer and workers, and the common intent of workers is one of the general interpretation standards (see Supreme Court en banc Decision 97Da5015 delivered on May 12, 199).

In light of the above legal principles, the defendant's bonus payment rules correspond to the rules of employment, and Article 5 of the above rules stipulate the bonus paid on the New Year's Day and the current year in addition to the bonus paid on the even number of months, but Article 6 stipulates the period of payment as "two months from the month preceding the month in which the bonus is paid to the month in which the bonus is paid to the person in question" and Article 6 sets the applicable rate of bonus to the person in question on the premise that the period of payment is two months, and the defendant did not apply the payment criteria of Article 6 of the bonus payment rules to the New Year's Child, Reinstatement, and the person in question, and the worker's side did not raise any objection to the above payment. In full view of the above legal principles, the payment criteria of Article 6 of the bonus payment rules are limited to the bonus paid on the even number of months, and the snow/tin bonus in this case is not subject to the application of the bonus payment rules (the plaintiffs also stated in the record that the provision of the payment restriction in Article 6 does not apply to the bonus in this case).

Furthermore, if the Defendant did not pay the instant snow/regument bonus to a retired employee before the payment date for a considerable period of time, and the labor union or individual employee did not raise any objection thereto, the instant snow/regument bonus was added to the qualification requirements for wage payment to those who were employed on the payment date, and did not pay to those who were employed on the payment date, while there is room to view that there was an explicit or implied labor-management agreement to pay all the workers who were employed on the payment date without asking for the details of the pre-regument labor provision, or that such a practice was established.

B) In light of the reasoning of the lower judgment and the record, the Defendant’s payment of the fixed amount with the instant annual leave allowance, gift allowance, and date-of-date subsidy to the relevant employees, and the fact that the employee retired before each payment day was not made can be seen as having reached an explicit or implied agreement, or that such a practice was established, to add the conditions that the employee would serve on the date of payment to the wage, as in the instant annual leave allowance, gift allowance, and date-of-date bonus.

Furthermore, the possibility of not being paid to a retired employee before the payment date cannot be ruled out even the individual pension fund and group insurance premium of this case.

C) If so, the court below should examine whether the subject of Article 6 of the bonus payment rules includes the instant snow/pact bonus, whether the Defendant’s snow/pact bonus, the instant snow/pact bonus, the annual leave bonus, gift expenses, and the developments leading up to the Defendant’s failure to pay the worker retired before the payment date, and how the labor union or workers raised an objection thereto, and how the individual pension subsidy and group insurance premium were paid and processed to the retired worker even during the payment of these wages, and not paid to those who were employed on the payment date, even if they were to have provided labor on the payment date, by adding the eligibility requirements for receiving wages to those who were employed on the payment date, but on the other hand, whether there was an explicit or implied labor-management agreement to pay all of them without asking the details of the employment provided by the king, or whether such practices have been established.

Nevertheless, without examining the aforementioned circumstances, the lower court determined that the wages constituted ordinary wages for the reasons stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on ordinary wages, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except a separate opinion by Justice Kim Chang-suk.

4. Concurrence by Justice Kim Chang-suk

We agree with the majority opinion that the part of the judgment of the court below against the defendant should be reversed.

However, for the following reasons, the Majority Opinion cannot accept the payment of bonuses or allowances paid periodically, uniformly, and fixedly for more than one month as well.

A. The remaining wages, excluding overtime work, night work, or holiday work (hereinafter “Extended work, etc.”) are classified into two types of wages for ordinary work and total work (referring to the entire work including ordinary work and overtime work) depending on the substance thereof. However, in a case where the wage paid by an employee is determined only when he/she works ordinary work, and where it is deemed that he/she is paid additional wages corresponding to the additional work hours, such wage shall be included in ordinary wage as it is naturally paid for overtime work. On the other hand, in a case where it is deemed that an employee was paid the same wage regardless of how he/she worked overtime work, etc. or even if he/she worked overtime work, the wage is deemed as having been paid the same wage, regardless of how much the hours worked, and thus, it is not necessary to pay additional wages corresponding to his/her additional work hours, even if he/she works overtime work, it cannot be objectively determined whether it is a legitimate wage under the Labor Standards Act or not, other than the labor-management labor-management labor-management’s total work.

In general, there is no doubt that inclusion of only basic pay and allowances paid at intervals of less than one month in ordinary wages as remuneration for ordinary labor is considered as labor-management agreement or labor-management practice so far. Therefore, in principle, the basic pay and allowances paid at intervals of less than one month should be interpreted as included in ordinary wages. Barring special circumstances, the interpretation that bonuses or allowances paid at intervals of more than one month are included in ordinary wages is illegal interpretation that denies the legal effect of labor-management agreement or labor-management practice. In this regard, Supreme Court Decision 94Da19501 Decided February 9, 196, which held that wages paid at intervals of more than one month are included in ordinary wages should be discarded.

In conclusion, whether or not a certain wage can be included in ordinary wages is determined, in essence, by whether or not the wage is the price for the ordinary work (fixed work) or is the price for the total work. Whether or not a certain wage is not a regular, uniform or fixed payment, is the secondary basic date to determine whether or not a regular, uniform or fixed payment has the formal nature of ordinary wages.

B. On the basis of these legal principles, unless there are special circumstances to recognize that there exists a labor-management agreement or labor-management practice to include the snow, stone, etc. in the ordinary wages, the snow, stone, bonus, etc. in the instant case shall be not the remuneration for the ordinary work but the remuneration for the total work, regardless of whether the payment method is regular, uniform, and fixed. Thus, it shall not be included in the ordinary wages.

C. For the same reason, I agree with the conclusion of the majority opinion that reversed the part of the judgment below against the defendant, but I agree with the dissenting opinion as to its reasoning, and therefore I express my separate opinion.

[Attachment] List of Plaintiffs: Omitted

Justices Yang Sung-tae (Presiding Justice)