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The prosecutor's appeal is dismissed.
Reasons
1. The judgment of the court below that calculated contractual work hours without including paid holiday allowances or weekly holiday allowances in the contractual work hours, which serve as a premise for calculating the minimum wage under the Minimum Wage Act, is unreasonable, although the gist of the grounds for appeal (in fact, mistake and misunderstanding of legal principles) is to be included
2. Determination
A. Article 6(1) of the former Minimum Wage Act (amended by Act No. 14900, Sept. 19, 2017) provides that “An employer shall pay wages exceeding the minimum wage amount to workers to whom the minimum wage is applied.”
Article 2(4) of the Labor Standards Act provides that “The wages, other than those paid periodically once or more a month, which are determined by the Minister of Employment and Labor (Article 2(1)1),” “other wages, other than those paid for the contractual work hours or the prescribed working days as prescribed by the Minister of Employment and Labor (Article 2(1)7 of the Labor Standards Act),” and “other wages prescribed by the Minister of Employment and Labor as inappropriate to be included in the minimum wage amount” shall not be included in the wages under paragraph (1).
Furthermore, the former Enforcement Rule of the Minimum Wage Act (amended by Ordinance of the Ministry of Employment and Labor No. 117, Dec. 31, 2014) provides for the scope of the wages not included in the minimum wage under Article 2 [Attachment 1] (hereinafter “minimum wage excluded”).
Therefore, whether the paid wage falls short of the minimum wage ought to be determined by comparing the amount of the wage (for the purpose of applying the minimum wage as the wage for the application of the minimum wage, hereinafter “non-paid wage”) with the minimum wage amount, excluding the paid wage.
According to this, paid holiday allowances, which are wages for paid holidays paid at the weekly wage system or monthly wage system, are regularly paid at least once a month for the prescribed work, and thus, constitute “wages excluded from the minimum wage calculation.”