[1] Criteria for determining whether family allowances constitute wages

[2] The case rejecting the assertion that the labor-management council has agreed to exclude family allowances from the average wage, which is the basis for the calculation of retirement allowances

[1] Articles 18 and 19 of the Labor Standards Act / [2] Articles 19 and 34 of the Labor Standards Act

[1] Supreme Court en banc Decision 94Da55934 delivered on May 12, 1995 (Gong1995Sang, 2111), Supreme Court Decision 93Da26168 delivered on July 11, 1995 (Gong1995Ha, 2577), Supreme Court Decision 96Da3037, 33044 delivered on October 24, 1997 (Gong197Ha, 3577)

Gangnam-si and 37 others (Attorneys Kim Han-soo et al., Counsel for the plaintiff-appellant)

Jung-gu Seoul Metropolitan Government (Seo Law Firm, Attorneys Park Sang-chul, Counsel for the plaintiff-appellant)

Seoul District Court Decision 2002Na33020 delivered on January 16, 2003

Of the part concerning delay damages of the judgment of the court of first instance, the part against the defendant in excess of the amount calculated by the rate of five percent per annum from October 31, 2001 to May 31, 2003, and the part against the defendant in excess of the amount calculated by the rate of twenty percent per annum from the next day to the date of full payment, shall be reversed, and the judgment of the court of first instance shall be revoked, and the corresponding part of the plaintiffs' claims shall be dismissed. All of the defendant's remaining appeals shall be dismissed. The total costs of the lawsuit shall be borne by the defendant

We examine the grounds of appeal.

1. As to the average wages on the basis of the calculation of retirement allowances

If family allowances are liable to pay to an employer and have been paid to an employee meeting certain conditions in lump sum, they are not voluntary and mutually advantageous benefits, but wages that have the nature of remuneration for labor (see, e.g., Supreme Court Decision 2000Da18127, May 31, 2002; Supreme Court en banc Decision 93Da26168, Jul. 11, 1995).

In the same purport, the court below is just in rejecting the defendant's assertion that family allowances are not included in the average wage, which is the basis of the calculation of retirement allowances, as voluntary and beneficial benefits, on the ground that the defendant uniformly paid family allowances to all street cleanerss when meeting certain requirements, and there is no error of law by misapprehending the legal principles on average wages

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in this case, unlike the case.

2. As to the agreement to exclude family allowances from average wages

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that " there was an explicit or implied agreement that does not include the family allowance in the average wage" as to the defendant's assertion that "the labor-management council of September 14, 1993 shall include the transportation subsidy which began to be paid from September 14, 1993 in the average wage, and the Seoul Special Metropolitan City labor union shall include the transportation subsidy in the average wage, while considering that the above labor-management council of October 22, 1993 decided that the transportation subsidy should be included in the average wage, it shall be acknowledged that "the average wage excluded (class 2) - family allowance, children's school allowance" is included in the scope of the wage which serves as the basis for calculating the average wage, and it is hard to view that the defendant agreed to exclude the family allowance from the average wage within the scope of the average wage which is the basis for calculating the average wage, and that there is no other evidence to support the defendant's assertion that the above transportation subsidy was excluded from the average wage.

Examining the relevant evidence in light of the records, the above recognition and judgment of the court below is acceptable, and there is no error of law by misunderstanding facts against the rules of evidence.

On the other hand, according to the records, in the Seoul Special Metropolitan City Trade Union's title "(e.g., a request for the delivery of an agreement) for the calculation of retirement allowances" in the Seoul Special Metropolitan City Trade Union on February 196, 196, the members' wage payment items and payment amount are changed in accordance with the internal affairs department (96 local government budget compilation guidelines) and the methods of calculating retirement allowances of each autonomous Gu are different, causing confusions. Thus, the documents are sent to the Seoul Special Metropolitan City's submission of the attached retirement allowance calculation (e.g., correction) or the labor-management agreement is deemed to be a labor-management agreement or if there is no objection, and the documents are accepted and notified to each autonomous Gu, and the family allowances are not mentioned in the average wage, which is the basis for the calculation of retirement allowances, but it is difficult to view that the changed wage payment items and payment amount are reflected in the calculation of retirement allowances, and thus, it is not erroneous in the conclusion of the judgment, even if the court below did not explicitly determine this part of the defendant's assertion.

3. Ex officio determination on damages for delay

ex officio, the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings before the amendment (amended by Act No. 6868 of May 10, 2003) was decided as unconstitutional on April 24, 2003. Accordingly, the amended provisions of the above Act and the main sentence of Article 3 (1) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) shall be 20 percent per annum of interest rate applicable to cases pending before the court at the time of the enforcement of the above Act. Thus, the court below's order to pay damages for delay at the rate of five percent per annum per annum, which is civil interest rate until May 31, 2003 before the enforcement of the above Act, and damages for delay after the amendment shall be made at the rate of 1.20% per annum from June 1, 2003 to 203.

4. Conclusion

Therefore, among the part of the judgment of the court below concerning damages for delay, the part against the defendant, which exceeds five percent per annum from October 31, 2001 to May 31, 2003, and twenty percent per annum from the next day to the day of full payment, shall be reversed. This part shall be decided by the court as it is sufficient for this court to directly judge. The judgment of the court of first instance corresponding to the above part shall be revoked and the plaintiffs' claim corresponding to the above part shall be dismissed. The defendant's remaining grounds for appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)