Plaintiff 1 and 15 others (Attorney Nam-hee, Counsel for the plaintiff-appellant)

Stabilization Transport Corporation

July 18, 2014

Seoul Southern District Court Decision 201Da42595 Decided September 26, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

Defendant: (a) The Defendant: (b) KRW 2,384,173 to Plaintiff 1; (c) KRW 2,937,865 to Plaintiff 2; and (d) KRW 1,829,669 to Plaintiff 3; and KRW 1,205,150 to Plaintiff 4; (b) KRW 1,151,012 to Plaintiff 5; (c) KRW 2,575,970 to Plaintiff 6; (d) KRW 1,714,62 to Plaintiff 7; and (e) KRW 1,869,538 to Plaintiff 8; and (e) KRW 1,490,681 to Plaintiff 9; and (e) KRW 1,588,251 to Plaintiff 11; and (e) KRW 1,137,98; and (e) KRW 1,360 to Plaintiff 12; and (e) KRW 1,249,97; and

2. Purport of appeal

The part against the plaintiffs in the judgment of the court of first instance shall be revoked. The defendant shall revoke the part against the plaintiffs 1, 2,384,173 won, 2,937,865 won, 1,829 won to the plaintiffs 3, 1,829,69 won to the plaintiffs 4, 1,205,150 won, 1,151,012 won to the plaintiffs 5, 2,575,970 won to the plaintiffs 6, 1,714,662 won to the plaintiffs 7, 1,869,538 won to the plaintiffs 1,58,251 won, 10 to the plaintiffs 1,58,251 won, 137,98 won to the plaintiffs 3, 112,510,432 won, 1,531, 150 won to the plaintiffs 61,251,419,57 won to the plaintiffs 19,250

1. Facts of recognition;

A. Defendant (a) is a general taxi transport business entity, and the Plaintiffs are taxi drivers who worked for the Defendant from June 2004 to December 201, 2010.

(b) Implementation of measures to reduce value-added taxes and follow-up measures;

1) On August 4, 1995, the Act on the Regulation of Tax Reduction and Exemption was amended, and 50/100 of the amount of value-added tax was reduced for general taxi transport business operators. At that time, the Ministry of Construction and Transportation provided administrative guidance to the general taxi transport business operators to use the amount of value-added tax reduced for improving the treatment of taxi drivers and improving their welfare.

2) Accordingly, since the mid-195, the Defendant reflected 34,328 won in the basic salary and allowances constituting fixed wage items with the financial resources of the amount of value-added tax reductions. Accordingly, the Defendant’s wages of taxi drivers belonging to the Defendant were increased accordingly [the higher class to which the Defendant’s trade union belongs (hereinafter “Defendant’s trade union”) and the trade association to which the Defendant belongs included the amount of direct benefits of value-added tax reductions in the amount of wages, and the amount of indirect benefits was calculated as included in the amount of wages, and the business operator would utilize the amount of indirect benefits to promote the welfare of its members.” The Seoul Regional Labor Relations Commission also made an arbitration award on January 5, 1996 that the basic salary and allowances increase in the amount of allowances under the wage agreement as seen earlier between five taxi companies located in Seoul and the above higher class union included 67,513 won in the amount of value-added tax reductions in the amount of value-added tax reductions in the amount of KRW 34,328 out of 67,513 won];

3) Of the amount of value-added tax reductions imposed on the Defendant, a new wage has been continuously calculated in accordance with the method of adding a certain increase or increase to the amount of the existing wage when a certain increase or increase is determined on the basis of the existing wage amount, as well as subsequent wage negotiations made in 1999 for the first time after the wage negotiations in 195 and 1996 (labor-management agreement) (based on the basic wage and allowance in 1996), which were concluded after the wage negotiations in 195 and 196 (labor-management agreement).

C. According to the revision of the Restriction of Special Taxation Act, the Minister of Construction and Transportation set up a "Guidelines for the Use of Value-Added Tax Reduction of Taxis" on April 2005, stating that "the taxi transport business operator shall use the full amount of value-added tax reduced for the purpose of improving the treatment and welfare of workers, and shall pay the individual workers in cash for basic pay, allowances, welfare expenses, etc. unless a majority of workers request the employment by other means, and shall make detailed matters concerning the method, timing, etc. of cash payment to be decided autonomously between the representative of workers and the employer,"

D. Accordingly, on June 2005, the Defendant and the Defendant’s labor union agreed on the payment of the abated value-added tax amount, and its main contents are as follows:

1. As from July 1, 2004, the company (defendant) shall pay the full amount of value-added tax reductions to each individual in cash;

5. The company already paid the amount of tax payable to the company on February 2, 2004 (from July 1 to September 30, 2004) which was already determined by the company, and the amount of tax payable to the company on February 2, 2004 (from January 1 to December 31, 2004) shall be paid on July 20, 205 by consultation prior to July 20, 2005.

6.This Agreement shall continue to be in force when the reduction measure is extended, and the payment of the reduced tax amount corresponding to the period from 1999 to 2004 shall be in accordance with the agreement on the joint bargaining in the Seoul Area.

E. However, after the above agreement was reached, the agreement on the payment of the amount of reduced tax for the second period of February 2004 was not reached until July 20, 2005, and the defendant arbitrarily calculated the amount of reduced value-added tax to be paid to the affiliated taxi engineers including the plaintiffs until February 15, 2008, and paid one time to the affiliated taxi engineers including the plaintiff in two to three months.

F. On March 28, 2008, the Defendant and the Defendant’s Trade Union agreed on the payment of the value-added tax reductions. The main contents are as follows, and they were implemented as they were.

1. Company (Defendant) and Trade Union (Defendant’s Trade Union) agree to pay 200,000 won in a lump sum on March 2008 and 63,000 won in each month until March 2009, taking into account the amount previously paid for the reduced amount of value-added tax (from July 2004 to December 31, 2008). The time for extension of the time limit for the reduction or exemption of value-added tax shall be determined by labor-management consultation later;

G. On July 31, 2009, the Defendant and the Defendant Trade Union agreed on July 31, 2009 that “the payment of the value-added tax reductions shall be analyzed based on the company management performance in 2008, and the payment method of the value-added tax reductions in 2009 shall be decided through labor-management consultation.” The main content of the agreement was as follows.

2. The method of payment of value-added tax reduction or exemption shall be agreed to recognize KRW 34,328 as reflected in benefits in an agreement between labor and management in 195, and the additional amount to be paid shall be determined based on KRW 63,00 per month until an agreement between labor and management is determined according to business performance in 2008, and it shall be paid differentiated depending on the individual standard transportation income performance and the number of actual working days.

H. In the labor-management agreement on wage agreements concluded on August 26, 2010, the Defendant and the Defendant’s labor union included the following contents: “The amount of value-added tax reduced shall be determined to pay KRW 34,328,00 per month, which is reflected in the salary, and shall be paid KRW 80,000 per month in addition, to give preferential treatment to the good-faith workers: (a) the individual transportation revenue and the number of working days agreed to be paid differently;

[Reasons for Recognition] The facts without dispute, the fact that the plaintiffs are the plaintiffs, Gap evidence 2, 3, Eul evidence 2, 5 through 8 (including the serial numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, the defendant is obligated to pay each corresponding amount stated in the "amount of money to be paid" in the attached list, which is the amount calculated according to the working days of the plaintiffs, among the amount of value-added tax mitigation for the period from the second period portion (from October 2004 to December 2004) to the second period portion (from October 2004 to the date of December 2004) for which the plaintiffs seek payment, according to the agreement on June 2005, unless there are special circumstances.

3. Judgment on the defendant's defense

A. Defendant’s defense

As stated in paragraph (e) and (h) of this Article, the Defendant paid cash to the Plaintiffs as the amount of value-added tax reductions, and continued to pay KRW 34,328 as stated in paragraph (1)(b) of this Article, including the Plaintiffs’ wages, thereby repaying all the obligation of value-added tax reductions to the Plaintiffs.

(b) Markets:

1) Determination on the payment of cash

The fact that the Defendant paid cash to the Plaintiffs as the amount of value-added tax reductions as stated in subparagraph 1(e) and (h) is as seen earlier, this should be deducted from the amount of value-added tax reductions to be paid by the Defendant to the Plaintiffs. Meanwhile, in full view of the purport of the entire pleadings in the statement in subparagraph 17, the amount of cash paid by the Defendant to the Plaintiffs can be recognized as the same fact as the amount indicated in the separate sheet “amount of cash payment” as stated in the separate sheet, and the statement in subparagraph 12 alone is insufficient to accept the above recognition.

2) Determination on the amount of wages included

A) According to the facts acknowledged earlier, it is reasonable to view that the wages of taxi drivers belonging to Defendant including the Plaintiffs were increased by including 34,328 won among the value-added tax reduction amount that the Defendant paid to taxi drivers in 195, and such wage reduction amount was maintained until December 2, 2010. As such, the Defendant should be deemed to have paid 34,328 won out of the value-added tax reduction amount by the payment of the Plaintiffs’ wages to the Plaintiffs by December 2, 2010. Accordingly, in full view of the purport of the argument in evidence No. 17, the value-added tax reduction amount that the Defendant paid to the Plaintiffs by including the aforementioned wages as above is the amount corresponding to the amount indicated in the column of “competing wage” in the attached Table.

B) As to this, the Plaintiffs asserted that the effect of the Plaintiffs’ wage increase including 34,328 won among the amount of value-added tax reduced pursuant to the wage agreement in 1995 was not reflected in the wage agreement in 2001, and thereafter, 34,328 won of the amount of value-added tax reduced was not reflected in the wage. However, even if there was no mentioning how the amount of value-added tax reduced was reflected in the wage agreement in the wage agreement since 2001, if the said wage agreement did not explicitly state that the amount of value-added tax reduced was excluded from the wage, the effect of raising the wage by including the above amount of value-added tax reduced in the said wage agreement in 195 remains valid, and therefore, the Plaintiffs’ above assertion is without merit.

C) In addition, the Plaintiffs asserted that wage increase since 1995, the Plaintiffs were paid the above 34,328 won additionally by Defendant 1, and that the amount of value-added tax reduced after July 1, 2004 pursuant to the labor-management agreement, 34,328 won was paid in cash, even if the amount of value-added tax reduced was included in wages, it is invalid. In light of the following circumstances, i.e., the Plaintiff’s claim to pay wages included in the employer’s labor-management agreement on April 2, 2005, which was the basis of the above agreement, was unreasonable and unreasonable (see, e.g., Supreme Court Decision 200Da1728, supra). The Plaintiffs’ assertion that there was no need to stipulate the obligation to pay the amount of value-added tax to the employer or the employer’s right to pay the amount of value-added tax that was paid in advance, and that there was no need to consider the aforementioned provision that there was no change in the employer’s right to pay the amount of value-added tax.

D) Therefore, the part of the value-added tax reduction amount that the Defendant paid to the Plaintiffs should be deducted from the value-added tax reduction amount that the Defendant should pay to the Plaintiffs. Meanwhile, in full view of the purport of the entire pleadings in the statement of No. 17, it can be acknowledged that the amount of the money that the Defendant paid to the Plaintiffs is identical to the amount indicated in the separate sheet as “paid wage” as stated in

3) Conclusion

Therefore, if the amount indicated in the “amount to be paid” in the separate sheet is deducted from each amount indicated in the “amount to be paid in cash” and “amount to be paid” as stated in the separate sheet, the Defendant is obligated to pay 450,928 won to Plaintiff 12 and the remaining amount to be paid to the Plaintiffs. The Defendant is obliged to pay to Plaintiff 12 the amount to be paid to Plaintiff 12 at a rate of 50,928% per annum as stipulated in the Civil Act from June 16, 2011 to September 26, 2013, which is deemed reasonable for the Defendant to dispute over the existence or scope of the obligation, and 5% per annum as stipulated in the special law on litigation promotion, etc. from the next day to the date of full payment. The remainder of Plaintiff 12’s claims and the remainder of the Plaintiffs’ claims are without merit within the scope of the aforementioned Defendant’s defense.

4. Conclusion

Therefore, the plaintiff 12's claim is accepted within the above scope of recognition, and all of the remaining claims of the plaintiff 12 and the remaining claims of the plaintiffs are dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges in writing (Presiding Judge)