[1] The concept and scope of ordinary wages

[2] The case holding that family allowances and heavy food costs are not included in ordinary wages

[3] The scope of wages as the basis for calculating average wages

[1] If money and valuables paid to workers as workers eligible for fixed labor or total labor, which are regularly and uniformly paid, in principle, wages belonging to ordinary wages shall be deemed as a matter of principle. However, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wages, if a certain amount of wages falls under ordinary wages, it shall belong to a fixed wage paid periodically and uniformly. Thus, it does not constitute ordinary wages unless paid periodically and uniformly, or if paid according to actual work performance, it does not amount to fixed wages.

[2] The case holding that, in case where only family allowances and full-time workers who have dependents are paid in kind, and money and valuables equivalent thereto are not provided to workers who have not been provided in kind, they shall not be included in ordinary wages

[3] The total amount of wages, which is the basis for the calculation of average wages, are money and valuables paid by an employer to an employee as compensation for his/her work, and the obligation to pay to an employee is crossed out by collective agreements, rules of employment, salary regulations, employment contracts, labor contracts, labor practices, etc., regardless of their titles, shall be included in all. However, the amount of compensation for actual expenses paid by an employee to compensate for additional expenses due to his/her performance of duties in a special working condition or environment or the amount of money paid mutually without the employer’s obligation to pay,

[1] Article 18 of the Labor Standards Act, Article 6 of the Enforcement Decree of the Labor Standards Act/ [2] Article 18 of the Labor Standards Act, Article 6 of the Enforcement Decree of the Labor Standards Act/ [3] Article

[1] Supreme Court Decision 90Da14758 decided Jun. 28, 1991 (Gong1991Ha, 2015) Supreme Court Decision 94Da26615 decided Oct. 28, 1994 (Gong1994Ha, 3119), Supreme Court Decision 95Da19256 decided May 14, 1996 (Gong1996Ha, 1837), Supreme Court Decision 97Da28421 decided Apr. 24, 1998 (Gong1998Sang, 1438), Supreme Court Decision 200Da29370 decided Jul. 23, 200 (Gong2002Ha, 2017) / [2] Supreme Court Decision 200Da25395 decided Apr. 29, 205 (Gong2009Ha, 2059)]

Plaintiff 1 and four others (Law Firm Taesung, Attorneys Lee Jin-jin, Counsel for the plaintiff-appellant)

Abandoned Automobile Co., Ltd. (Law Firm Sam, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na12620 delivered on January 10, 2003

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. As to whether family allowances and heavy cost can be the basis for the calculation of ordinary wages

If money and other valuables paid to an employee as the object of the prescribed labor or the total amount of labor is paid periodically and uniformly, all wages belong to ordinary wages in principle. However, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wages, if a certain amount of wages falls under ordinary wages, it shall belong to a fixed wage which is paid periodically and uniformly (see Supreme Court Decisions 97Da28421, Apr. 24, 1998; 90Meu14758, Jun. 28, 1991; 94Da2615, Oct. 28, 1994; 95Da19256, May 14, 1996; 200Da3737, Jul. 37, 2002, etc.).

Examining the evidence admitted by the court of first instance as cited by the court below in light of the records, the court below is just in holding that all family allowances and food ordinary wages shall not be included in calculating the amount, unless there are special circumstances, since it is acknowledged that the court below did not include in calculating the amount of money equivalent to those of the full-time workers who are paid in kind only to the full-time workers who are employed in an area where it is impossible to pay in kind. In principle, heavy-time workers shall be paid in kind within the extent not exceeding four persons, but for those who are employed in the area where it is impossible to pay in kind, they shall be paid in cash. In addition, it is not erroneous in the misapprehension of the legal principles as to the scope of wages, which are the basis of the calculation of ordinary wages, due to the violation of the rules of evidence, or the misapprehension of the legal principles as to the scope of wages, which are the basis of the calculation of ordinary wages, as otherwise alleged in the grounds of appeal.

Supreme Court Decision 90Meu19647 delivered on December 7, 1990, and Supreme Court Decision 93Da26168 delivered on July 11, 1995, which are cited in the grounds of appeal by the plaintiffs, are merely the purport that all family allowances and food costs can be the basis for calculating average wages, and thus, it is not appropriate to apply to this case.

2. Whether the gift cost can be the basis for calculating average wages

The total amount of wages, which forms the basis for the calculation of average wages, are money and valuables paid by an employer to an employee as compensation for work, which are paid continuously and regularly to an employee and whose payment obligation is crossed out by collective agreements, rules of employment, wage regulations, employment contracts, labor contracts, labor practices, etc., regardless of their titles (see Supreme Court Decision 2001Da53950, Oct. 23, 2001). However, it does not include the total amount of wages which are the basis for the calculation of average wages, such as compensation for actual expenses paid by an employee to compensate for additional expenses incurred by performing his/her duties in a special working condition or environment (see Supreme Court Decision 97Da56235, Feb. 9, 199).

Examining the evidence admitted by the court of first instance as cited by the court below in light of the records, the court below is just in holding that the defendant company cannot be deemed to have paid gift expenses continuously and regularly to the plaintiffs in return for work, and there is no error of law by incomplete deliberation or misconception of facts due to violation of the rules of evidence, as alleged in the grounds of appeal. The ground of appeal on

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

Justices Seo-sung (Presiding Justice)