1. Article 2(1)1 of the Enforcement Decree of the Labor Standards Act that provides that “The period of probationary period and the amount of wages paid during such period shall be deducted from the total amount of average wages,” provides that “The purpose of the legislation is to avoid a result contrary to the average wage system, which provides the basic principle that the average wage shall be unjustly reduced unless the period is excluded, and ultimately reflects the ordinary amount of living wages.” Thus, it is reasonable to view that the scope of application is limited to the case where the period of probationary period includes not only the period of ordinary wages paid during the three months prior to the date on which the cause for calculating the average wage arises but also the probationary period. Therefore, it is reasonable to calculate the average wage on the basis of the amount of wages paid as the probationary employee regardless of the above Enforcement Decree, if the cause for calculating the average wage occurred before the end of the probationary period.

2. A. According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance, and found that Article 2 subparagraph 3 of the former Enforcement Decree of the Labor Standards Act (wholly amended by Presidential Decree No. 12359, Dec. 31, 1987) which was in force at the time of the accident at the time of the original adjudication as the factual same contents as the present Enforcement Decree of the Act was applied to the case where a part of the probation period was included in the period of three months before the occurrence of the cause for calculating the average wage. If the cause for calculating the average wage occurred during the probation period as the plaintiff, the court below determined that the average wage calculated based on the total amount of the wages paid by the defendant to the plaintiff during the probation period is 5,228.65 won, and that it was legitimate to determine the above amount of the plaintiff's average wage as the first average wage in order to protect the plaintiff since the amount was less than 6,010 won of ordinary wages of the worker employed by the plaintiff

B. In light of the above legal principles and the records, we affirm the above determination by the court below as just, and there were no errors in the misapprehension of legal principles as to the method of calculating average wages when there were grounds for calculating average wages during the probation period, or by failing to exhaust all necessary deliberations.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)