[1] Whether a present public official, etc. may seek payment of overtime work allowances corresponding to the actual overtime work hours under an order of service (affirmative in principle), and whether the guidelines for handling the former local public official’s remuneration work, etc. are the same as the case where a present public official, etc. provides that the monthly payment of overtime work hours shall be determined as “within the scope of budget” for the present person, or the case where a local government organized overtime work allowances in the budget so that it falls short of the actual overtime work

[2] The meaning of working hours and recess hours, and the method of determining whether the break time or WIG hours under a labor contract belong to work hours or recess hours

[3] In a case where a provision of an Act and subordinate statutes grants a specific administrative agency the authority to specify the procedure or method of exercising its authority when it grants a specific administrative agency the authority to determine the specific contents of the statute, and thus the delegated administrative agency specifically determines the matters to be the contents of the statute in the form of administrative rules, whether the administrative rules have the effect as an external binding legal order (affirmative in principle), and in such a case, the method of determining whether the specific administrative

[1] Comprehensively taking account of the provisions of Articles 44(4) and 45(1) of the former Local Public Officials Act (amended by Act No. 11531, Dec. 11, 2012); Article 30 of the Local Public Officials Remuneration Regulations; Articles 15, 16, and 17 of the former Regulations on Allowances, etc. for Local Public Officials (amended by Presidential Decree No. 22620, Jan. 10, 201); Article 36(1) of the former Local Finance Act (amended by Act No. 1091, Aug. 4, 2011); Article 5 of the Regulations on Services of Local Public Officials provides that allowances for local public officials shall be determined by the relevant statutes; thus, it shall not be deemed that the current provision on overtime work hours, such as overtime work hours, etc. prescribed by the relevant statutes; Article 5 of the former Regulations on Services provides that local public officials may request payment of overtime work allowances (amended by Presidential Decree No. 2101, Feb. 1, 2019).

[2] Work hours refer to the hours for which an employee provides labor under the employer’s direction and supervision. Recess hours refer to the hours for which an employee can freely use, which are set by the employer’s direction and supervision during work hours. Therefore, even if an employee does not actually engage in work during work hours, or during work hours, if an employee is under the employer’s direction and supervision, not free use, but is actually under the employer’s direction and supervision, they should be deemed to be included in work hours. Determination is not uniformly based on the contents of an employment contract, the rules of employment and collective agreement applicable to the relevant workplace, the details of work provided by the employee, whether the employee interferes with or supervises the employee, whether the employee is equipped with a place for free use, and other circumstances such as interference with the actual rest of the employee or whether the employer’s direction and supervision is recognized. Determination should be made specifically based on an individual case, based on an individual case.

[3] The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency, are generally effective only within the administrative organization and do not have external binding force. However, if a provision of an Act and subordinate statute grants the authority to determine the specific matters of the statute to a specific administrative agency, and the delegated administrative agency specifically provides for the matters to be the contents of the statute in the form of administrative rules in the form of administrative rules, such administrative rules do not have the general effect of the administrative rules as seen above, but have the function to supplement the contents of the statute. Accordingly, such administrative rules have the effect of an external binding legal order in combination with those of the administrative rules, unless they go beyond the bounds of delegation of the relevant statute. In such a case, whether a specific administrative rule complies with the limits of delegation should be determined by comprehensively examining the purpose and content of the relevant provision of the Act and subordinate statutes, the structure of the provision, and relations with other provisions. If it is merely impossible to interpret the relevant statute, or if it is not possible to specify it in light of the purport of the relevant provision in question.

[1] Articles 44(4) and 45(1) of the former Local Public Officials Act (Amended by Act No. 11531, Dec. 11, 2012); Article 30 of the Local Public Officials Remuneration Regulations; Articles 15, 16, and 17 of the former Regulations on Allowances, etc. for Local Public Officials (Amended by Presidential Decree No. 22620, Jan. 10, 201); Article 36(1) of the former Local Finance Act (Amended by Act No. 10991, Aug. 4, 2011); Article 5 of the Local Public Officials Service Regulations / [2] Articles 50 and 54 of the Labor Standards Act / [3] Article 95 of the Constitution of the Republic of Korea

[1] Supreme Court Decision 2005Da9227 Decided September 10, 2009 (Gong2009Ha, 1595) / [2] Supreme Court Decision 2014Da74254 Decided December 5, 2017 (Gong2018Sang, 30) / [3] Supreme Court Decision 2006Du3742, 3759 Decided March 27, 2008 (Gong2008Sang, 623), Supreme Court Decision 2011Du15640 Decided October 27, 201 (Gong201Ha, 2459) (Gong201Ha, 2459), Supreme Court Decision 2015Du5132 (Gong2016Ha, 2016Ha360) Decided August 17, 2016

See the attached list of plaintiffs (Law Firm Samil, Attorneys Song-hae et al., Counsel for the plaintiff-appellant)

Gyeonggi-do et al. (Attorney Seo-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu8174, 8181 decided January 10, 2014

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ grounds of appeal

A. Regarding ground of appeal No. 1

1) Article 44(4) of the former Local Public Officials Act (amended by Act No. 11531, Dec. 11, 2012) provides that “No money or valuables may be paid as remuneration for public officials unless otherwise prescribed by this Act or other Acts and subordinate statutes.” Article 45(1) provides that matters concerning the salary, salary class, and raise of public officials (Article 1), matters concerning allowances (Article 2), methods of payment of remuneration, calculation of remuneration, and other matters concerning the payment of remuneration to local public officials shall be prescribed by Presidential Decree so that such public officials may be provided for the so-called statutory principle concerning the remuneration of public officials within the scope of their ordinary working hours; Article 30 of the former Local Public Officials Act provides that public officials may be provided for necessary allowances within the scope of their budget; Article 14 of the former Local Public Officials Act provides that public officials may be provided for the payment of remuneration within the scope of their night working hours other than those prescribed by Presidential Decree; Article 30 of the former Local Public Officials Act provides for the payment of remuneration to public officials within the scope of their work hours prescribed by Presidential Decree.

In full view of the provisions of the relevant statutes, allowances for local public officials are set by the statutes. As long as excess allowances, such as overtime work hours, night work hours, and holiday work allowances, are appropriated in the budget, local public officials, etc. prescribed in Article 5 of the Local Public Officials Service Regulations may seek payment of overtime work allowances equivalent to actual overtime work hours under the order of service (see Supreme Court Decision 2005Da9227, Sept. 10, 2009, etc.). This is not the case where the former guidelines for the handling of remuneration for local public officials, etc. (amended by the Ministry of the Interior and Safety Ordinance No. 297, Jan. 22, 2010; hereinafter “instant guidelines”) provide that overtime work hours for the present public officials, such as the present agency workers or shift workers, etc., whose nature of overtime work hours are set out in the budget, shall not be deemed to have any different guidelines for overtime work hours to be set within the scope of the budget, or that local governments do not have any different guidelines for overtime work hours.

2) On the grounds stated in its reasoning, the lower court determined that, unlike the current or former fire officers who belong to each fire station within the Defendants’ jurisdiction and are in charge of overtime work, the Plaintiffs are currently or former fire officers in general service who are in charge of overtime work, whose nature of overtime work is institutionalized, different from those of public officials in general service (general workers) who are in charge of overtime work within the hours of departure and retirement, the Defendants are obliged to pay overtime work allowances equivalent to the actual hours of overtime work regardless of the scope of the budget actually set and appropriated as long as excess work allowances are included in the budget.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the interpretation of “within budgetary limits” under Article 15(1) of

B. Regarding ground of appeal No. 2

In full view of the circumstances stated in its reasoning, the lower court determined that the Defendant Seoul Special Metropolitan City should pay at least the overtime work allowances prescribed in Articles 15 through 17 of the instant allowances regulations and the instant guidelines to fire officials under its jurisdiction even after the implementation of the total work cost system.

Examining the reasoning of the lower judgment in light of relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

C. Regarding ground of appeal No. 3

1) The term “working hours” means the hours during which an employee provides labor under the employer’s direction and supervision. Recess hours refer to the hours for which an employee may freely use by harming the employer’s direction and supervision during working hours. Therefore, even if an employee does not actually engage in work during working hours, or during working hours, if an employee is under the employer’s direction and supervision, not free use, but is actually under the employer’s direction and supervision, it should be considered as working hours. Determination is not uniformly based on the contents of an employment contract, the rules of employment and collective agreement applicable to the relevant workplace, the details of the work provided by the employee, whether the employee interferes with or supervises the employee, whether the employee was equipped with a place for temporary rest, and whether the employee interferes with or supervises the actual rest, and the extent of such circumstances, etc. (see, e.g., Supreme Court Decision 201Da4754, Dec. 25, 2017).

2) In light of the circumstances stated in its reasoning, the lower court determined that the Plaintiffs’ night time and meal hours are included in working hours as hours under the command and supervision of superior officers.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by violating the rules of evidence

D. Regarding ground of appeal No. 4

For the reasons indicated in its holding, the lower court determined that the working hours indicated in the business trip order book, the document of overtime work plan, the place of work, and the business trip management ledger can be recognized as the plaintiffs' non-day working hours.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, even though the lower court’s reasoning was somewhat inappropriate, its conclusion is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by violating the rules of evidence or by misapprehending the legal doctrine on

E. Ground of appeal No. 5

The lower court rejected the Defendants’ assertion that the instant guidelines only provide that the ordinary workers shall apply the premium rate according to the hours of overtime work payment, and that the ordinary workers and the present workers are different in the scope and calculation method of overtime work payment, and thus, the provision on the premium rate adjustment for the present workers cannot be applied to the present workers without any ground, on the grounds that the provision on the premium rate adjustment for the present workers cannot be applied to the present workers.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

2. Regarding the plaintiffs' grounds of appeal

A. As to the overtime work allowance and the holiday work allowance in bottle

1) The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency regarding guidelines for the performance of duties or guidelines for the interpretation and application of statutes, are generally effective only within the administrative organization and do not have external binding force. However, if a provision of statutes grants authority to determine specific matters of the statutes to a specific administrative agency and does not specify procedures or methods for the exercise of such authority in the form of administrative rules, the delegated administrative agency specifically determines matters that are the contents of the statutes in the form of administrative rules, such administrative rules do not have the general effect of administrative rules as seen above, but have the function to supplement the contents of the statutes in accordance with the validity of the provisions that grant authority to supplement the specific contents of the statutes to an administrative agency. Therefore, unless such administrative rules do not go beyond the bounds of delegation under the pertinent statutes, they have the effect of an external binding order (see, e.g., Supreme Court Decision 2006Du3742, 3759, Mar. 27, 2008).

2) The instant provision provides that overtime work allowances (Article 15(2)) shall be paid for every hour during which overtime work is performed, and night work allowances (Article 16(2)) shall be paid for every hour at night as determined by 1/226 of the base amount of salary, while the said allowances shall be paid for every hour during which overtime work is performed at night by 1/226 of the base amount of salary, on the other hand, the said allowances shall be calculated and paid at 15/30 of the base amount of salary on the basis of 1st day of the holiday work (Article 17(2)).

Considering the aforementioned calculation unit and method of overtime work allowance, night work allowance, and holiday work allowance and their premium rate under the instant provision, it is reasonable to deem that the instant provision does not stipulate that overtime work allowance and holiday work allowance will be paid in duplicate with respect to overtime work. Therefore, prohibiting the sick payment of overtime work allowance and holiday work allowance with respect to the same overtime work hours as delegated by Article 15, etc. of the instant provision is merely a specification or specification that it is possible to interpret the instant provision, and thus, it cannot be deemed that the instant provision exceeded the delegation scope, and the instant provision, combined with the instant provision, has the effect of external binding legal order.

3) Based on its stated reasoning, the lower court rejected the Plaintiffs’ assertion that the instant guidelines were invalid because they exceeded the delegation scope of superior statutes, and that overtime work allowances should be paid for holiday work hours.

Examining the reasoning of the judgment below in light of the above legal principles and records, such determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the scope and limitation of delegated legislation and the legal nature

B. As to whether a local public official in an official duty is excluded from working hours (monthly) under the Local Public Officials Service Regulations

The lower court determined that the No.S. holiday was not excluded from the working hours (monthly) under the Local Public Officials Service Regulations on the grounds that the No.S. holiday cannot be deemed as a leave or equivalent under the Local Public Officials Service Ordinance, and it cannot be deemed as a paid holiday under Article 55 of the Labor Standards Act.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the calculation of hours of overtime

3. Conclusion

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

[Attachment] List of Plaintiffs: Omitted

Justices Kim Jae-hyung (Presiding Justice)