[1] The case affirming the judgment below holding that in case where a nursing worker Gap was dispatched to Byung hospital after concluding a labor contract with Eul and retired from office, since Gap and Eul corporation are dispatched to workers, Eul corporation is obligated to pay Gap unpaid wages and retirement allowances as a temporary work agency pursuant to Article 34 (1) of the Act on the Protection, etc. of Temporary Agency Workers

[2] The case holding that, in a case where Gap sought payment of the unpaid retirement allowance and the unpaid minimum wage amount below and the delayed payment damages against Eul social welfare foundation, the first instance court accepted Gap's claim, but the appellate court rejected Eul's appeal with respect to the unpaid retirement allowance claim, but Eul accepted part of Eul's extinctive prescription defense with respect to the unpaid retirement allowance, and partly accepted the unpaid retirement allowance, the delayed interest rate under the Labor Standards Act is applied from the date following the fourteen days after Gap's retirement date, but it is deemed appropriate to dispute the existence of the unpaid amount below the unpaid minimum wage until the appellate court's judgment was rendered, and thus, the delayed interest rate under the Labor Standards Act cannot be applied to that period

[1] Articles 2(1) and 34(1) of the Act on the Protection, etc. of Temporary Agency Workers, Articles 34 and 43 of the Labor Standards Act / [2] Article 37 of the Labor Standards Act, Articles 17 and 18 subparag. 3 of the Enforcement Decree of the Labor Standards Act

Plaintiff

Korea Teachers' Association (Attorney Kim Young-sik et al., Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2013Na9923 Decided August 17, 2015

Of the part concerning delay damages of the lower judgment, the part against the Defendant ordering payment of KRW 3,895,176 at a rate of 5% per annum from November 10, 2010 to August 17, 2015; the amount calculated at the rate of 20% per annum from the next day to the date of full payment; and KRW 3,925,890 per annum from November 10, 2010 to the date of full payment; and the part against the Defendant ordering payment of KRW 3,925,890, which exceeds the amount calculated at the rate of 20% per annum from November 10, 201 to the date of full payment; and the corresponding part of the first instance judgment is revoked; and the Plaintiff’s claim corresponding thereto is dismissed. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Based on the circumstances indicated in its reasoning, the lower court determined that the Plaintiff and the Defendant were dispatched to the hospital as indicated in its holding after concluding a labor contract with nursing personnel including the Plaintiff, and thus, it is reasonable to view that the Plaintiff and the instant hospital were in the position of temporary agency workers, temporary work agency workers, and user companies, respectively, and that when applying the Labor Standards Act (Articles 34, 43, and 48) on retirement allowances and wages pursuant to Article 34(1) of the Act on the Protection, etc. of Temporary Agency Workers, the temporary work agency is deemed the employer, and thus, the Defendant is obligated to pay the Plaintiff the unpaid wages and retirement allowances as

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on workers under the Labor Standards Act, contrary to what is alleged in the grounds of

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

2. Regarding ground of appeal No. 2

A. According to Article 37(1) and (2) of the Labor Standards Act, Articles 17 and 18 subparag. 3 of the Enforcement Decree of the Labor Standards Act, where an employer fails to pay all or part of wages and retirement allowances within 14 days from the date on which the cause for the payment occurred, in principle, the employer shall pay interest in arrears at the rate of 20/100 per annum for the number of delayed days from the following day to the date on which the cause for the payment occurred. However, where it is deemed appropriate to dispute the existence of all or part of the wages and retirement allowances whose payment is delayed at the court or the Labor Relations Commission, it is not necessary to pay interest in arrears for the period in which the cause exists (see Supreme Court Decision 2012Da105741, Dec. 12, 2013).

B. According to the reasoning of the lower judgment and the record, the Plaintiff claimed for the payment of the unpaid retirement allowance of KRW 3,925,890, the unpaid minimum wage of KRW 17,195,310, and the delayed payment of the unpaid minimum wage of KRW 17,195,310. (2) The first instance court accepted the Plaintiff’s claim for retirement allowance and the unpaid minimum wage of KRW 17,195,310, but the lower court rejected the Defendant’s appeal, but the lower court accepted the Defendant’s claim for the unpaid retirement allowance of KRW 3,925,890 and KRW 3,895,176 among the unpaid retirement allowance of KRW 3,925,890 and the unpaid minimum wage of KRW 3,821,06 and the late payment damages of KRW 20% per annum as provided in the Labor Standards Act from November 10, 201 to the date of full payment.

C. Examining the reasoning of the lower judgment in light of the legal doctrine as seen earlier, the lower court did not err by misapprehending the legal doctrine on interest in arrears under the Labor Standards Act, contrary to what is alleged in the grounds of appeal, which applied the delayed interest rate under the Labor Standards Act from November 10, 2010 to the date of full payment with regard to the Plaintiff’s claim for retirement

However, as long as the defendant's defense was partially accepted in the court below with respect to a claim amount below the minimum wage amount and only part of the claim was accepted, it is reasonable to view that the defendant, as the date of the plaintiff's retirement, dispute over the existence of the unpaid wage from November 10, 2010 to August 17, 2015, which is the date the judgment of the court below was rendered, should be deemed appropriate, and therefore, the delayed interest rate under the Labor Standards Act cannot be applied to that period.

Nevertheless, the lower court erred by misapprehending the legal doctrine on interest in arrears under the Labor Standards Act, thereby adversely affecting the conclusion of the judgment, which affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant ordering payment in excess of the amount calculated at the rate of 20% per annum from November 10, 2010 to August 17, 2015, as to the unpaid minimum wage amount of KRW 3,895,176, and the amount calculated at the rate of 5% per annum from the next day to the next day to the day of full payment, as to the retirement allowance of KRW 3,925,890, which is calculated at the rate of 20% per annum as stipulated in the Labor Standards Act, from the next day to the day of full payment, shall be reversed. This part is sufficient for the court to directly render a judgment. Accordingly, the first instance judgment corresponding to the above reversed part shall be revoked, and the Defendant’s remaining appeal shall be dismissed, and two-thirds of the total litigation costs shall be borne by the Plaintiff, and the remainder shall be borne by the Plaintiff as per Disposition with the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)