[1] Whether the Medical Insurance Act, as a special law under the Labor Standards Act, excludes the application of the Labor Standards Act to labor relations between medical insurance associations and their employees (negative)

[2] The case holding that food expenses, transportation expenses, physical fitness expenses, and long-term continuous service allowances paid periodically and uniformly are recognized as ordinary wages, and that regular service allowances paid differently according to actual service performance do not constitute ordinary wages

[1] Article 25 of the Medical Insurance Act, which does not exclude the application of the Labor Standards Act, does not include any provision that excludes the application of the Labor Standards Act, but is different from the Labor Standards Act, does not include any special provision on the Labor Standards Act concerning the working conditions such as wages, working hours, etc. of employees belonging to medical insurance associations. Article 25 of the Medical Insurance Act, which provides that "the organization, management, and operation of the association, and other matters necessary for dissolution, merger, etc. of the association shall be prescribed by the Presidential Decree." It is difficult to see that Article 25 of the Medical Insurance Act, which provides that "the special provision on the Labor Standards Act concerning the working conditions of employees belonging to the medical insurance association, is prescribed by the regulations on the operation of the local medical insurance association, even if the

[2] The case holding that since food expenses, transportation expenses, and transportation expenses are monthly fixed amounts, 50% of the monthly basic salary or 100% of the monthly basic salary to all employees during a certain period, all of them are money and valuables to be paid for a prescribed work or total work, and they are periodically and uniformly paid, they belong to ordinary wages, and the long-term continuous work allowances are not a mutually advantageous payment regardless of the amount or quality of work, but a certain amount has been paid every month regardless of the actual work performance, and they belong to ordinary wages on the grounds that they are regularly and uniformly paid, but the continuous work allowances are defined as one of the payment conditions, but the payment of fixed-term work allowances is determined based on actual work performance, and it cannot be deemed as a fixed wage, and therefore, they cannot be deemed as ordinary wages.

[1] Article 10 of the Labor Standards Act, Article 25 of the Medical Insurance Act / [2] Article 19(2) of the Labor Standards Act, Article 31 of the Enforcement Decree of the Labor Standards Act

[1] Supreme Court Decision 89Meu24780 delivered on March 13, 1990 (Gong1990, 882) Supreme Court Decision 92Da32357 delivered on November 27, 1992 (Gong1996Sang, 259) Supreme Court Decision 94Da7553 delivered on August 23, 1994 (Gong1994Ha, 2503) / [2] Supreme Court Decision 92Da20316 delivered on May 27, 1993 (Gong1993Ha, 1861), Supreme Court Decision 94Da2615 delivered on October 28, 194 (Gong1994, 3199) and Supreme Court Decision 97Da196395 delivered on June 16, 195 (Gong1965 delivered on September 195, 196)

Plaintiff 1 and 37 others (Attorneys Cho Jae-in et al., Counsel for the plaintiff-appellant)

Busan Metropolitan Government Medical Insurance Association (Attorney Cho Jong-tae, Counsel for the plaintiff-appellant)

Busan District Court Decision 94Na2586 delivered on November 25, 1994

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. On the first ground for appeal

The Medical Insurance Act does not have a provision excluding the application of the Labor Standards Act, and it cannot be deemed as a special law of the Labor Standards Act, unlike the legislative purpose, regulations, etc. of the Labor Standards Act. In addition, in individual provisions, the Medical Insurance Act does not provide for the special provisions of the Labor Standards Act concerning the working conditions such as wages, working hours, etc. of employees belonging to the Medical Insurance Association. Article 25 of the Medical Insurance Act, which provides that "the organization, management, operation, and other matters necessary for dissolution, merger, etc. of the association shall be prescribed by Presidential Decree." It is difficult to see that Article 25 of the Medical Insurance Act, which provides that "the special provisions of the Labor Standards Act concerning the working conditions of employees belonging to the Medical Insurance Association, is stipulated in relation to the working conditions of employees belonging to the Medical Insurance Association." Even if the

There is no reason to discuss any other opinion.

2. On the second ground for appeal

The fixed-time allowance prescribed by the operational regulations of the defendant association is paid to all persons who meet the payment conditions under Article 106 (1) of the operational regulations regardless of whether a worker has used a monthly or monthly leave. In addition, the provision of Article 106 (2) provides that a person subject to a reduction of salary or higher or a person subject to removal from position shall be paid the fixed-time allowance in accordance with the method of the provision, the fixed-time allowance prescribed by the above operational regulations is entirely different from the purpose or character of the payment, and the payment requirement of the monthly or monthly leave allowance under the Labor Standards Act. Therefore, if a worker continued to work without using the fixed-time allowance within the statutory period, regardless of whether he has received the payment of the fixed-time allowance prescribed by the above operational regulations, the defendant association shall pay the annual or monthly leave allowance under the Labor Standards Act (see, e.g., Supreme Court Decisions 94Da1853, Jun. 29, 195; 94Da54599, Jun. 30, 1995).

Therefore, the court below's decision that the provision of Article 106 (3) of the Operational Rules (amended by April 19, 190) which provides that "the annual or monthly leave allowance that is paid pursuant to Articles 47 and 48 of the Labor Standards Act shall be substituted by the main allowance (the daily leave allowance) shall not be effective, and that the defendant shall pay the plaintiffs the annual or monthly leave allowance (this refers to the annual leave allowance) under the Labor Standards Act which is based on ordinary wages, regardless of the payment of the regular leave allowance prescribed by the above Operational Rules.

There is no reason to challenge this issue.

3. On the third ground for appeal

Article 31(1) of the Enforcement Decree of the Labor Standards Act provides that the ordinary wage under the Labor Standards Act refers to hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract wage to be paid to an employee regularly or uniformly for a prescribed work or total work. Thus, in principle, the payment of wage periodically or uniformly to an employee is all the ordinary wage. Therefore, even if the wage is paid periodically or uniformly for a period exceeding one month, it can be included in ordinary wage if it is paid periodically or uniformly. If it is not paid directly or in proportion to the prescribed working hours, it cannot be excluded from ordinary wage. However, in light of the legislative purpose of the Labor Standards Act to guarantee the minimum amount of the average wage, and the function of the ordinary wage that recognizes the basis for calculating premium, holiday work allowance, holiday work allowance, dismissal allowance, etc., and the function and necessity of the ordinary wage, it cannot be deemed that the wage falls under the ordinary wage, and thus, it does not fall under the ordinary wage under the ordinary wage (see, e.g., Supreme Court Decision 90Do19410).

According to the records of this case, the food stand in the decision of the court below, the transportation cost is the fixed amount each month, the 50% of the basic monthly pay or 100% of the basic monthly pay to all the employees including the plaintiffs during a certain period, and all the money and valuables are to be paid for the prescribed or total labor, and it is a fixed wage to be paid periodically and uniformly. The long-term continuous service allowance in the decision of the court below is not a mutually advantageous payment regardless of the amount or quality of labor, but a certain amount is paid every month to the person who has reached a certain number of years of service regardless of the actual work performance, and it is a fixed wage to be paid periodically and uniformly.

However, according to the above operational regulations, the fixed-term continuous work is defined as one of the payment conditions, and the payment of fixed-term work allowances is ultimately determined according to actual work performance, so it cannot be deemed as a fixed wage. Therefore, it cannot be said that the fixed-term work allowances belong to ordinary wages.

Therefore, the court below's determination of the plaintiffs' hourly ordinary wage by deeming the fixed-term allowance as the ordinary wage constitutes an ordinary wage is erroneous and it is clear that this affected the conclusion of the judgment. Therefore, there is a reason to point this out.

4. On the fourth ground for appeal

In general, since wages are paid in full to workers, if an employer is a claim against a worker because it is a principle that the employer is unable to offset his/her wages against his/her wage claims, due to an error in the calculation, etc., it is reasonably close as much as the time and time when the event was paid in excess of the statutory allowances, etc., and the amount and method thereof are not likely to undermine the stability of the economic life of the worker, such as prior notice, or if the worker requests wages or retirement allowances that have not been paid during his/her service after his/her retirement, the excess amount and method may be offset against his/her automatic claim for the right to claim the return of the wages paid (see, e.g., Supreme Court Decisions 93Da28737, Oct. 12, 1993; 93Da38529, Dec. 28, 1993). Thus, the excess amount of wages can be deducted from unpaid wages.

Therefore, even in cases where a worker claims unpaid statutory allowances for a certain period in light of the above legal principles, it is also permitted to offset the unpaid statutory allowances or deduct the unpaid statutory allowances from the unpaid statutory allowances for the same period on the grounds that there are the parts of excess payment of other statutory allowances for the same period (see the above 94Da18553, the above 94Da18553, the above 94Da5459, and the party members 94Da26721, Dec. 21, 1995). In addition, if the rules of employment on the method of calculating statutory allowances fall short of the lowest amount of payment conditions of wages under the Labor Standards Act, and thus invalid, if the amount of statutory allowances paid by the employer under the rules of employment exceeds the legitimate statutory allowances under the Labor Standards Act, the excess amount shall be deemed to have been erroneously paid.

Nevertheless, the court below did not deduct the above excess payment from the unpaid statutory allowance amount, etc. on the ground that the court below did not deduct the part of the above excess payment in the case where the plaintiffs already received overtime work allowance or holiday work allowance is more than the legitimate amount calculated by the standard under the Labor Standards Act. The court below erred by misapprehending the legal principles on deduction of excess payment.

There is a reason to challenge this issue.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)