[1] Where the validity of a wage payment contract under the comprehensive wage system is recognized

[2] The meaning of disadvantage, which is the passive validity requirement of wage payment contract under the comprehensive wage system, and the standard for determining the disadvantage

[3] The case holding that a contract of employment entered into between a company which divides a position into a general employee and a general employee is the rules of employment for a general employee separately from the rules of employment for a general employee

[4] Whether a weekly holiday allowance and annual holiday allowance may be included in wages under the comprehensive wage system (affirmative)

[5] The validity of an agreement to pay a retirement allowance including it in daily allowances (negative)

[1] In a case where an employer concludes a labor contract, without calculating a basic wage in advance, the employer shall determine the basic wage for the worker and pay the total sum of the allowances in addition to the allowances based on the determination of the basic wage. However, in a case where an employer concludes a wage payment contract based on the so-called comprehensive wage system with the content that the total sum of the allowances shall be determined as a monthly wage or daily wage, or that the amount of the monthly fixed amount shall be paid as an allowance, without calculating the basic wage in consideration of the working hours, the form of employment, and the nature of the work, it shall not be deemed null and void

[2] The fact that a wage payment contract based on the comprehensive wage system ought to have no disadvantage to workers refers to that where a collective agreement or rules of employment stipulate specific standards for wage payment, etc., it shall not be disadvantageous in light of such standards.

[3] The case holding that in a case where the rules of employment of a company, which divides his/her employees into two categories of general service employees and general service employees, is mainly intended for general service employees, and the rules of employment of a company, which does not provide any specific provision for employees, and where the rules of employment, which includes the rules of service and wages, are uniformly applied to the daily workers from 50 persons, the rules of employment contain the rules of employment as to the working conditions such as wages, etc. for the daily worker, so whether the wages paid to the daily worker are disadvantageous in light of the rules of employment shall be determined by whether the amount of the wages paid to the daily worker is disadvantageous in light of the contents of the labor contract applied to the daily worker, and it is not necessarily necessary to compare the wages of the general worker with the wages of the general worker.

[4] Even if a weekly holiday allowance or annual holiday allowance occurs only when the worker has worked for a certain period as stipulated in the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996), it is not impossible for the parties to pay weekly holiday allowance or annual holiday allowance to include weekly holiday allowance or annual holiday allowance in the daily wage or a certain monthly amount on the premise of the worker’s work during such prescribed period. The comprehensive wage system is related to the payment method of various kinds of allowances, and it is not related to the exercise of the worker’s right to monthly holiday allowance, so the comprehensive wage system is not deprived of the worker’s right to annual holiday leave.

[5] The term "retirement allowance" means a retirement allowance payment under Article 28 of the former Labor Standards Act, as long as the labor contract remains in existence, there is no room for the duty to pay a retirement allowance, so even if a certain amount of money was paid as retirement allowance under the daily pay, it is not effective as retirement allowance payment under Article 28 of the former Labor Standards

[1] Articles 22 (see current Article 24) and 46 (see current Article 55) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 22 (see current Article 24) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [3] Article 94 (see current Article 96) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [4] Article 2 (see current Article 24), Article 46 (see current Article 55), Article 47 (see current Article 57 (see current Article 539 of the Labor Standards Act) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 197), Article 539 of the former Labor Standards Act (see current Article 539 of the Labor Standards Act)

[1] [3] Supreme Court Decision 91Da30828 delivered on February 28, 1992 (Gong1992, 1161) / [1] Supreme Court Decision 80Da2384 delivered on March 9, 1982 (Gong1982, 421) 94Da542 delivered on July 28, 1995 (Gong1995Ha, 2970), Supreme Court Decision 95Da4056 delivered on April 25, 197 (Gong1997, 196Da3895 delivered on July 29, 197) 96Da38995 delivered on July 16, 197 (Gong1997, 195) / [2] Supreme Court Decision 96Da389695 delivered on July 29, 197 (Gong197, 26395)

Plaintiff

Samwon M&S Co., Ltd.

Seoul District Court Decision 96Na3004 delivered on May 9, 1996

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court. The remaining appeal by the plaintiff is dismissed. The costs of appeal by the dismissed portion are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the defendant, based on the evidence of 100 regular workers' work experience or 100 regular work hours, maintained labor relations by dividing them into two categories of regular workers' work experience or 10 daily work hours. The plaintiff, a worker with 10th regular work experience or 2th regular work hours' work hours' daily work experience or 10th regular work hours' daily work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' 10th regular work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' work hours' 10th regular work hours' work hours'.

According to Articles 22 and 46 through 48 of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996; hereinafter the same), where an employer concludes a labor contract, he/she shall determine the basic wages for workers and pay them in addition to the allowances based on the determination thereof. However, in light of the contents of the labor contract and the records of the Plaintiff’s labor contract including the following: (a) where an employer concludes a wage payment contract based on the so-called comprehensive wage system with the intent to promote convenience in calculation and employee’s desire to work by taking into account working hours, the form of work and the nature of work, etc., without calculating the basic wages in advance, the sum of the allowances shall be determined as monthly wage or daily wage; or (b) where it is deemed that there is no disadvantage to employees in light of all circumstances, it shall not be deemed null and void (see, e.g., Supreme Court Decisions 80Da2384, Mar. 9, 1982; 91Da308285, Feb. 25, 2997

In addition, the fact that a wage payment contract under the comprehensive wage system has to be made without disadvantage to workers should not be disadvantageous in light of the standards set forth in the collective agreement or rules of employment, if the collective agreement or rules of employment provide specific criteria for the payment of wages. The rules of employment include the working rules and rules on working conditions, such as wages (see, e.g., Supreme Court Decisions 91Da30828, Feb. 28, 1992; 95Nu15698, Feb. 27, 1996). According to the records, the rules of employment of the defendant company is mainly for ordinary workers, and the rules of employment of the defendant company do not provide for any specific provision for the same worker. On the other hand, the defendant company prepared a written labor contract under the above conditions as seen above (i) through (iv) separately and uniformly applies to the daily workers from the above contents of the employment rules, and therefore, the above labor contract should be determined with the contents of the employment rules that are applied to the daily workers.

Nevertheless, the court below's comparison of the total wage for one year between a worker and a general worker shall be deemed to be aimed at ascertaining that there is little difference in the wage level between the two categories of occupational categories or that it is not significant, and this is also supported by the testimony of non-party 1 by the witness. Thus, the court below erred in failing to add the weekly paid leave allowance and monthly paid leave allowance, which are included in the total wage of a general worker in comparison with the total wage between the two categories of occupational categories, or it is not appropriate for the selection of the plaintiff and non-party 2, who is the worker engaged in physical labor in the simple functional occupation, to have similar work, even though the above error in the calculation of the court below or the inappropriate selection of comparable is not affected by the conclusion of the judgment.

In the end, the judgment of the court below is not erroneous in the misconception of facts or incomplete hearing due to the violation of the rules of evidence which affected the conclusion of the judgment.

2. Regarding ground of appeal No. 2

Even if the weekly paid leave allowance or annual paid leave allowance occurs only when the worker has worked for a certain period under the former Labor Standards Act, it is not impossible for the parties to pay the weekly paid leave allowance or annual paid leave allowance under the premise that the worker has worked for a certain period of time (see, e.g., Supreme Court Decisions 80Da2384, Mar. 9, 1982; 85Da2473, Jun. 9, 1987; 91Da30828, Feb. 28, 1992). The comprehensive pay system is related to the payment method of various allowances, and it cannot be deemed that the comprehensive wage system is deprived of the worker's right to monthly paid leave allowance (see, e.g., Supreme Court Decision 92Da3398, May 27, 1993). Therefore, there is no error in the misapprehension of legal principles as to the production leave allowance or annual paid leave allowance under the former Labor Standards Act.

However, it is not acceptable that the judgment of the court below included a retirement allowance in the production allowance received by the plaintiff. Article 28 (1) of the former Labor Standards Act provides that "retirement allowance shall be provided to an employee who retires" and "retirement allowance" shall be provided to an employee, and as long as the labor contract remains in existence, there is no room for the obligation to pay the retirement allowance (see, e.g., Supreme Court Decisions 73Da278, Oct. 10, 1973; 90Da14560, Jun. 28, 1991; 95Da19256, May 14, 1996). Accordingly, even if the court below paid a certain amount of money as retirement allowance under the daily daily wage paid by the plaintiff, it shall not be effective as retirement allowance payment under Article 28 of the former Labor Standards Act.

In addition, even if a worker is a daily employee, if the employment relationship is not actually discontinued and continues, he/she shall be deemed a regular employee and pay the retirement allowance (see, e.g., Supreme Court en banc Decision 83Meu657, Aug. 19, 1986; Supreme Court Decision 93Da26168, Jul. 11, 1995). Thus, if a worker is absent from office for 13 days per year and has continued to work for 1 year or more, he/she shall be naturally a regular employee as a retirement allowance.

Nevertheless, the lower court’s rejection of the Plaintiff’s claim for retirement benefits on the grounds as indicated in its reasoning does not constitute an unlawful act that affected the conclusion of the judgment by misapprehending the legal doctrine on retirement allowances. There is a ground to point this out.

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the plaintiff is dismissed, and the costs of appeal as to the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)