Plaintiff (Counterclaim Defendant) 1 and 7 others (Law Firm Shin, Attorneys Yellow-chul et al., Counsel for the plaintiff-appellant)

Geum River Transportation Co., Ltd. (Attorney Song-young, Counsel for the defendant-appellant)

December 9, 2015

Suwon District Court Decision 2014Gahap2225 Decided June 19, 2015

1. Revocation of the first instance judgment.

2. The plaintiff (Counterclaim defendant)'s main claim is dismissed.

3. The costs incurred by the principal lawsuit out of the total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant), and the costs incurred by the counterclaim shall be borne by the Defendant (Counterclaim Plaintiff).

[Claim]

The main claim: The defendant (Counterclaim Plaintiff; hereinafter referred to as "the defendant") shall pay to the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") 20% interest per annum from April 12, 2014 to the date of full payment, each of the relevant amounts entered in the separate claim list in the separate claim list in the separate claim list in the separate claim list in the separate claim list in the separate claim list in the separate claim form.

The preliminary counterclaim: The plaintiffs shall pay to the defendant the amount of money stated in the "total amount of claim" column for each plaintiff in the separate sheet of claim amount in attached Form 3 and the amount calculated by 15% per annum from the day after the date of delivery of the counterclaim of this case to the day of full payment (the defendant filed the preliminary counterclaim at the trial).

【Purpose of Appeal】

The same shall apply to the order.

1. Facts of recognition and relevant regulations;

This part of the court's reasoning is the same as that of the judgment of the court of first instance, and thus, this part of the court's reasoning is cited in accordance with the main sentence of Article 420

2. Determination as to the claim on the principal lawsuit

A. The plaintiffs' main safety defense

The plaintiffs asserted that the defendant's appeal is unlawful, since it violates the good faith principle, even though the defendant promised to pay unpaid wages according to the result of the judgment of the first instance during the first instance trial.

According to the statement No. 5-1 and No. 2 of the evidence No. 5-2 of the court of first instance, although the defendant posted a notice to the effect that “part of workers may have concerns about this lawsuit, but the thickness of the parties concerned would not be any distinction or any distinction.” Although the current trial is in the process of proceeding, we would like to have promised to execute according to the result of the first trial, even though we would like to have agreed to do so.” However, in principle, since the judgment ordering monetary payment is sentenced to a provisional execution sentence, in principle, the losing party is bound to pay money according to the judgment of the provisional execution sentence, and the defendant still disputed the claims of the plaintiffs at the time of the above special notice, and it is objectively required to clarify the intention of legal proceedings, such as non-exercise of the right to appeal, etc., the defendant’s above “execution promise according to the result of the judgment” cannot be deemed to have expressed the intention of not appeal against the judgment of the court of first instance, the defendant’s assertion that the defendant did not appeal against the above judgment is without merit.

B. The Parties’ assertion on the cause of the claim

1) The Plaintiffs asserted that “The Defendant is obligated to pay the unpaid minimum wage and various statutory allowances calculated by applying it as ordinary wages, as the employees belonging to the Defendant were not paid the wages guaranteed under the Minimum Wage Act.”

2) As to this, the Defendant’s claim for the payment of the unpaid minimum wage and the statutory allowances calculated accordingly on the ground that the labor contract of the Plaintiff’s choice is invalid in violation of the Minimum Wage Act is against the principle of good faith, and (3) if the Plaintiffs’ claim is accepted, it is against the principle of fairness or unjust enrichment, and thus, it should be deducted from the unpaid minimum wage and the unpaid amount of transportation income received by the Plaintiffs in substitution of the Defendant in accordance with the principle of fair and unjust enrichment if the Plaintiffs’ claim is accepted.

C. Determination on the cause of the claim

1) The minimum wage system is to ensure the minimum livelihood security of low-paid workers and to narrow the income gap, and its scope of application and applicable method should be reasonably determined so that all workers can benefit. Article 6(5) of the Minimum Wage Act is newly established to ensure that taxi workers can receive wages exceeding the minimum wage amount by excluding output wage and wage from the minimum wage of taxi workers on the ground that it is unreasonable to include excess earnings, other than taxi commissions, in the minimum wage, in the case of taxi workers. Thus, Article 6(5) of the Minimum Wage Act is applicable even if the defendant does not receive fixed wage from the defendant, such as the plaintiffs, even if he does not receive at all, Article 6(5) of the Minimum Wage Act. Accordingly, the defendant, located at the same time, is subject to Article 6(5) of the Minimum Wage Act from July 1, 2010, should be calculated and paid within the scope of wages included in the minimum wage.

2) The Plaintiffs’ monthly contractual hours from March 1, 201 to December 2013 are 152 hours, and the monthly contractual hours from January 1, 2014 are 142 hours, and the Plaintiffs’ monthly contractual hours are 13 days as seen earlier. The fact that the daily minimum wage per hour determined and announced by the Minister of Labor under the Minimum Wage Act is 4,320 won from January 1, 201 to December 31, 201, and 4,580 won from January 1, 201 to December 31, 2012, and 4,580 won from January 1, 201 to December 31, 2013; and 4,860 won from January 1, 2013 to December 31, 2013; and 14, from January 1, 2014 to December 14, 2015.

Therefore, based on the monthly contractual work hours, if the plaintiffs calculated the minimum wage that they could have paid during each relevant month from March 201 to May 2014 according to the formula of “monthly contractual work hours 】 the number of working days 】 13 days) 】 the minimum wage rate x 13 days x the calculation result is as stated in the table of “minimum wage” in the table of claim amount in attached Form 1. However, the excess transportation income received by the plaintiffs is not included in the scope of wages included in the minimum wage as “production-based wage” and is not included in the scope of wages included in the minimum wage, and thus, the amount corresponding to the “minimum wage” in the table of claim amount in attached Form 1 is the minimum wage that the plaintiffs was not paid immediately.

3) Therefore, barring any other special circumstances, the Defendant is obligated to pay each statutory allowance stated in the “minimum wage” column in the list of claims amount in attached Form 1 and each annual minimum wage amount in the table of claims amount in attached Form 1, calculated as stated in attached Table 2, based on which the annual paid leave allowance, night work allowance, and oil paid holiday allowance, respectively, in the table of claims amount in attached Form 1, calculated as stated in attached Table 2.

D. Determination on the assertion of violation of the good faith principle

1) In order to deny the exercise of rights on the ground that the exercise of rights is in violation of the principle of trust and good faith, it should be deemed that the other party provided good faith to the other party, or that the other party’s act of exercising rights against the other party’s good faith should reach a reasonable state from an objective perspective, and that the exercise of rights against the other party’s good faith should reach an extent that it is not acceptable in light of the concept of justice (see Supreme Court Decision 91Da3802, Dec. 10,

2) In full view of the following circumstances, comprehensively taking account of the facts acknowledged as above, Gap evidence Nos. 1 and Eul evidence Nos. 3, 21, 23, 24, 25, and 28 as well as the overall purport of the arguments, it is deemed that: (a) entering into an employment contract by which the plaintiffs applied the Minimum Wage Act according to their own will; (b) entered into an employment contract by selecting the latter; and (c) subsequently, receiving remuneration above the level guaranteed by the Minimum Wage Act; and (d) subsequently, seeking wage payment calculated in accordance with the Minimum Wage Act by asserting that the contract violated the Minimum Wage Act; and (e) exercising rights contrary to the other party’s good faith, thereby leading to a situation that is not acceptable in light of the concept of justice. Accordingly, the defendant’s assertion of violation of the good faith principle is with merit.

① Around September 2010, according to the revised Minimum Wage Act enforced on July 1, 2010, Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5, among the employees belonging to the Defendant, organized a labor union with “the Ministry of Labor and Labor in the North Korea Site of the Korea Taxi Industry Workers’ Union” and demanded the Defendant to enter into a “monthly wage” labor contract with fixed wage above the minimum wage. However, the majority of the employees did not necessarily want to inevitably increase the taxi commission upon the implementation of the monthly wage system. Accordingly, the Defendant’s labor and management entered into a labor contract on a monthly basis (178,000 won for taxi commission, 200 won for membership, 178,000 won for employment contract, and 15,000 won for employment contract with Plaintiff 1’s previous workers, including Plaintiff 3, Plaintiff 5, and Plaintiff 5,000 won for employment contract, respectively, as Plaintiff 1’s previous workers and Plaintiff 1’s previous workers were selected to enter into the labor contract.

② From July 1, 2010, a number of taxi companies and each of their labor unions located in Gyeonggi-do engaged in negotiations on the taxi commission, excess taxi earnings, and contractual work hours under the amended Minimum Wage Act. The taxi companies were in the position that it is inevitable to increase taxi commissions for the purpose of paying contractual work hours and fixed wages under the Minimum Wage Act. The labor unions were opposed to the increase of taxi commissions because excess taxi earnings are reduced upon the increase of taxi commissions, thereby the actual income of workers decreases. As a result of the long-term negotiations, most labor-management agreed that the reduction of contractual work hours is inevitable in order to minimize the increase of taxi commissions and pay fixed wages per hour under the Minimum Wage Act.

③ The Defendant also needs to change the above wage structure to pay fixed wage under the Minimum Wage Act; however, the Defendant’s labor union, which promoted the monthly wage system at the time, was dissolved on September 2010 because it was not supported by the majority of workers, and the majority of workers sought to conclude a contract on the same contractual basis as that of the previous workers. Therefore, the Defendant was difficult to implement the monthly wage system unilaterally in a situation where the employees’ opposition to the increase in taxi commission is evident.

Around May 30, 2014, the Defendant’s labor and management concluded a monthly wage agreement that implements the monthly wage system and implemented the monthly wage system from June 2014. However, considering the details of the conclusion of the wage agreement as seen earlier and the Defendant’s labor union organized around February 2014, unlike the previous workers’ assertion, demanding the implementation of the monthly wage system, and when ten of the employees belonging to the Defendant began to retire on or around August 4, 2014, a considerable number of taxi companies in Gyeonggi-do implemented the monthly wage system, and on December 2, 2015, even if Nonparty 6’s representative director was indicted on charges of violating the Minimum Wage Act and the Labor Standards Act, it cannot be deemed that the Defendant is mainly responsible for the failure to implement the monthly wage system from the time when the Minimum Wage Act was amended.

④ The Defendant’s workers who entered into a contract-based employment contract have earned monthly KRW 180 to 2.5 million (Provided, That the Plaintiff 1 obtained monthly income of KRW 90 through 2 million and average KRW 1.5 million). Such income exceeds the wage level calculated in accordance with the Minimum Wage Act. Therefore, it cannot be readily concluded that the Plaintiffs who selected the contract-based employment contract at the time of entry into a contract-based employment contract were more unfavorable than that of entering into a contract-based employment contract.

⑤ The purpose of the Minimum Wage Act is to contribute to the stabilization of workers’ livelihood and the improvement of the quality of the labor force by guaranteeing the minimum level of wages for workers, thereby contributing to the sound development of the national economy. In the event of entering into a contract on a piece of labor, excess taxi earnings revert to all the Plaintiffs. In the Defendant’s case, even if excess taxi earnings vary for each worker, and are not fixed depending on the period, the total amount of wages under the Minimum Wage Act is at least the minimum level of wages under the Minimum Wage Act. Even if there is no fixed wage guaranteed by the Minimum Wage Act, the structure in which the amount of wages guaranteed by the Minimum Wage Act is substantially attributed to the Plaintiffs, and thus, the contract

6. Although the revised Minimum Wage Act aims at strengthening the percentage of fixed wage, if the Plaintiffs, who were the workers, did not want to receive fixed wage under the Minimum Wage Act by reasonably bridgeing their profits and entering into a contract on the same contractual basis as the previous ones, and if the result of the labor contract concluded cannot be seen as disadvantageous to the workers as a whole, the contract should be respected between the parties concerned. In such a situation, it is reasonable to deem that the Plaintiffs, at their option, provided the Defendant with the belief that they would not demand fixed wage under the Minimum Wage Act by entering into a contract on the basis of their own choice, would not demand fixed wage under the Minimum Wage Act. From an objective perspective, the Defendant’s belief against the Plaintiffs, who entered into the contract on the contractual basis, has

E. Sub-decision

Therefore, the plaintiffs' assertion on the grounds of violating the Minimum Wage Act is contrary to the principle of good faith, and the plaintiffs' assertion on this premise is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of main lawsuit is dismissed without merit (the defendant's conjunctive counterclaim is not judged unless the plaintiffs' claim of main lawsuit is justified). Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiffs' claim of main lawsuit is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Jin-young (Presiding Judge)

(1) In the trial of the court, the defendant did not dispute the plaintiffs' employment status of the defendant, and the above argument (3) is also the preliminary counterclaim.