Whether the remaining income of taxi drivers after deducting taxi commission from the transportation income is included in the average wage that serves as the basis for job-seeking benefits under the Employment Insurance Act (affirmative)

The Employment Insurance Act, in principle, provides that the daily amount of job-seeking benefits, which serves as the basis for calculating job-seeking benefits, shall be calculated with the average wage as prescribed by Article 2(1)6 of the Labor Standards Act (Articles 46(1)1 and 45(1)), and Article 2(1)6 of the Labor Standards Act provides that “The amount of average wages means the amount calculated by dividing the total amount of wages paid to the relevant worker during the three months immediately before the date on which the cause for calculating the amount of average wages occurred by the total number of days

In addition, in a case where an ordinary taxi transport business operator, other than paying a certain amount of fixed wage according to the actual working days each month to its affiliated taxi drivers, receives the remainder after deducting taxi commission from daily transportation income (hereinafter “excess taxi earnings”) from the individual taxi drivers’ individual income and takes charge of free disposition, such excess taxi earnings are also paid as remuneration for labor, taking into account the characteristics of the taxi drivers’ work form and the convenience of calculation, and thus, constitute wages.

Considering such content of the Employment Insurance Act, the Labor Standards Act, the nature of excess transport earnings under the taxi commission scheme, and the purport of the Employment Insurance Act that seeks to promote the stabilization of workers’ livelihood and job-seeking activities by providing necessary benefits when workers are unemployed, the excess transport earnings should also be included in the calculation of the average wage that serves as the basis for job-seeking benefits under the Employment Insurance Act

Articles 45(1) and 46(1)1 of the Employment Insurance Act, Article 2(1)6 of the Labor Standards Act

Supreme Court Decision 96Nu17905 delivered on March 25, 1997 (Gong2000Sang, 1323)

Plaintiff (Public-Service Advocates, Counsel for plaintiff-appellant)

The Head of the Central Local Employment and Labor Agency (Law Firm Sejong, Attorneys Lee Byung-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu51080 decided May 26, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on the scope of average wages as the basis of job-seeking benefits

A. As a matter of principle, the Employment Insurance Act provides that the daily amount of job-seeking benefits, which serves as the basis for calculating job-seeking benefits, shall be calculated by holding the average wage as prescribed by Article 2(1)6 of the Labor Standards Act (Articles 46(1)1 and 45(1)), and Article 2(1)6 of the Labor Standards Act provides that “The amount of average wages means the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the date on which the cause for calculating the amount of average wages occurred by the total number

In addition, in cases where an ordinary taxi transport business entity received a free disposition from an individual taxi driver’s income by deducting taxi commission from daily transportation income (hereinafter “excess taxi earnings”) in addition to paying a fixed amount equivalent to the actual working days per month to the taxi drivers under his/her jurisdiction, such excess taxi earnings are deemed to have been paid as remuneration for work, taking into account the characteristics of the taxi driver’s work form and the convenience of calculation, etc. Therefore, such excess taxi earnings also constitute wage (see, e.g., Supreme Court Decisions 96Nu17905, Mar. 25, 1997; 98Du15269, Apr. 25, 2000).

Considering such content of the Employment Insurance Act, the Labor Standards Act, the nature of excess transport earnings under the taxi commission scheme, and the purport of the Employment Insurance Act that seeks to promote the stabilization of workers’ livelihood and job-seeking activities by providing necessary benefits when workers are unemployed, the excess transport earnings should also be included in the calculation of the average wage that serves as the basis for job-seeking benefits under the Employment Insurance Act

B. The lower court determined that the Defendant’s disposition of refunding job-seeking benefits to the Plaintiff was unlawful, which took place on the part of the Plaintiff’s total transport earnings, other than the taxi commission, by excluding the average wage calculated as the basis for job-seeking benefits under the Employment Insurance Act.

C. The above determination by the court below is just in accordance with the above legal principles, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the scope of average wages which serve

Supreme Court Decision 98Da18568 delivered on April 23, 1999, etc. cited as the grounds of appeal, are different from this case, and thus it is inappropriate to invoke this case.

2. As to the remaining grounds of appeal

A. On the grounds indicated in its reasoning, the lower court recognized 50% of the average wage, which serves as the basis for calculating the amount of job-seeking benefits, as KRW 34,505, and calculated the amount of excess that the Plaintiff should return to the Defendant.

B. 1) Without being asserted in the lower court, any assertion newly made in the final appeal cannot be a legitimate ground for appeal against the lower judgment (see, e.g., Supreme Court en banc Decision 93Da26168, Jul. 11, 1995).

The plaintiff's assertion that the period of suspension of work due to occupational accidents should be excluded from the calculation period of average wages is only asserted in the final appeal, and thus, it cannot be a legitimate ground for appeal against the judgment below.

2) Furthermore, the allegation in the grounds of appeal disputing the fact-finding based on which the lower judgment was based is merely an error of the selection of evidence and the determination of the value of evidence belonging to the free evaluation of the lower court. Furthermore, even when examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the period or method

3. Conclusion

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 Ahn Jae-chul (Presiding Justice)