[1] The meaning of "where it is difficult to calculate the daily wage pursuant to the provisions of paragraphs (1) and (2)" under Article 35 (3) of the former Employment Insurance Act

[2] The method of calculating the daily wage that serves as the basis for calculating job-seeking benefits pursuant to Article 35 of the former Employment Insurance Act

[1] In light of the language and purport of Article 35 of the former Employment Insurance Act (amended by Act No. 6850 of Dec. 30, 2002), Article 19 of the former Labor Standards Act (amended by Act No. 6974 of Sep. 15, 2003), etc., “where it is difficult to calculate the daily wage pursuant to paragraphs (1) and (2)” under Article 35(3) of the former Employment Insurance Act refers to cases where it is difficult to calculate the daily wage by considering the language and purport of the provision related to the daily wage and the average wage, etc., the term “where it is difficult to calculate the daily wage pursuant to Articles 19(1) of the former Labor Standards Act, Articles 2 and 3 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158 of Dec. 11, 2003), and Article 35(2) of the former Employment Insurance Act, it shall be interpreted that it is difficult to calculate the daily wage by considering Article 4 of the former Enforcement Decree.

[2] When intending to calculate the basic daily wage under Article 35 of the former Employment Insurance Act (amended by Act No. 6850 of Dec. 30, 2002), the basic daily wage should be applied under Article 19(1) of the former Labor Standards Act (amended by Act No. 6974 of Sep. 15, 2003), Articles 2 and 3 of the Enforcement Decree of the former Labor Standards Act (amended by Presidential Decree No. 18158 of Dec. 11, 2003), and Article 35(2) of the former Employment Insurance Act (amended by Presidential Decree No. 18158 of Dec. 30), only in cases where it is difficult to calculate the basic daily wage, the basic daily wage should be used as the basic daily wage under Article 35(3) of the same Act.

[1] Article 35 of the former Employment Insurance Act (Amended by Act No. 6850, Dec. 30, 2002; see current Article 45); Article 19(1) of the former Labor Standards Act (Amended by Act No. 6974, Sep. 15, 2003; see current Article 2(1)6); Articles 2, 3, and 4 of the Enforcement Decree of the former Labor Standards Act (Amended by Presidential Decree No. 18158, Dec. 11, 2003); / [2] Article 35 of the former Employment Insurance Act (Amended by Act No. 6850, Dec. 30, 2002; see current Article 45); Article 19(1) of the former Labor Standards Act (Amended by Act No. 6974, Sep. 15, 2003; see current Article 19(1)6(1) and (2) of the former Enforcement Decree of the Labor Standards Act (Amended by Presidential Decree No. 20138(1)

Plaintiff 1 and 47 others (Attorney Song Young-young, Counsel for the plaintiff-appellant)

The head of the Mapo Regional Labor Office

Gwangju High Court Decision 2004Nu1062 delivered on December 22, 2005

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The grounds of appeal are examined.

1. Article 35(1) of the former Employment Insurance Act (amended by Act No. 6850, Dec. 30, 2002; hereafter the same applies below) declares that the daily amount of job-seeking benefits, as a matter of principle, shall be the average wage calculated pursuant to Article 19(1) of the Labor Standards Act based on the date of final severance from employment. Paragraph (2) of the same Article provides that the amount calculated pursuant to the above provision shall be the ordinary wage if the amount calculated is less than that of the relevant worker’s ordinary wage. Paragraph (3) of the same Article provides that “Where it is difficult to calculate the daily wage pursuant to paragraphs (1) and (2) and where the premium is paid based on the standard wage, the standard wage shall be the basic daily wage if the daily wage calculated pursuant to the above provisions is lower than the minimum basic daily wage (paragraph (4)); and where the amount exceeds the prescribed amount (paragraph (5)).”

Meanwhile, Article 19(1) of the former Labor Standards Act (amended by Act No. 6974, Sep. 15, 2003; hereinafter the same) declares the method of calculating the average wage in principle, and Article 19(2) provides that if the amount calculated is less than the amount calculated as the average wage, the amount of the ordinary wage shall be deemed the average wage. In addition, Articles 2 and 3 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158, Dec. 11, 2003; hereinafter the same shall apply) provide that “If it is impossible to calculate the average wage pursuant to Articles 19, 2 and 3 of this Decree, the average wage shall be determined by the Minister of Labor.”

In light of the language and purport of the above provision related to daily wage and average wage, the reason why the former Employment Insurance Act has much detailed and specific provisions compared to the provision on the calculation of average wage under the Labor Standards Act, is that, unlike the Labor Standards Act that regulates the specific legal relations of individual workers, in order to facilitate the smooth operation of the employment insurance system based on statistical principles for all workers, reasonable and appropriate daily wage is more important than anything else. Therefore, when interpreting Article 35 of the former Employment Insurance Act as to daily wage calculation, it is necessary to faithfully comply with the language and text so that the intent of each provision that specifies the method of calculating daily wage can sufficiently function, in applying Article 35(3) of the former Employment Insurance Act, the phrase “where it is difficult to calculate the daily wage pursuant to paragraphs (1) and (2)” under Article 19(1) of the former Labor Standards Act, and Articles 2 and 35(2) of the former Enforcement Decree of the Labor Standards Act and Article 35(2) of the former Enforcement Decree of the Employment Insurance Act can not be construed to mean the case where it is difficult to calculate the daily wage even under Article 4 of the former Enforcement Decree.

Furthermore, it is difficult to think that it is difficult to calculate the daily wage once again because of the characteristics of Article 4 of the former Enforcement Decree of the Labor Standards Act, if it is interpreted that Article 35(3) of the former Employment Insurance Act can be applied only when it is difficult to calculate the daily wage from the perspective of the above provision, there is no room for actual application of Article 35(3) of the former Employment Insurance Act. This goes against the purport of Article 4 of the former Enforcement Decree of the Labor Standards Act in preparation for cases where it is difficult to calculate the daily wage by the calculation method of the daily wage in principle, compared to the purport of Article 4 of the former Enforcement Decree of the Labor Standards Act, in preparation for cases where it is difficult to calculate the daily wage by the calculation method of the daily wage, the former Employment Insurance Act specifically prepares Article

Therefore, when it is intended to calculate the daily wage that is the basis of calculating job-seeking benefits pursuant to Article 35 of the former Employment Insurance Act, it is in principle to calculate the daily wage pursuant to Article 19(1) of the former Labor Standards Act, Articles 2 and 3 of the Enforcement Decree of the former Labor Standards Act, and Article 35(2) of the former Employment Insurance Act, as prescribed by Article 35(1) and (2) of the same Act. Accordingly, only in cases where it is difficult to calculate the daily wage, the basic wage should be applied to the case where it is applied to the case where it is difficult

2. According to the judgment below and the evidence duly admitted by the court below, each average wage as of the time when the plaintiffs received the normal wage was twice the amount of each ordinary wage. Since the amount received during about four months prior to the departure of employment reduced, the average wage of plaintiff 26 exceeds the ordinary wage as of the date of departure of employment, but the remaining plaintiffs' average wage is reduced to 25% of each average wage of the ordinary wage of the ordinary wage and 50% of each average wage of the ordinary wage of the ordinary wage.

In light of the above facts acknowledged in light of the legal principles as seen earlier, as stipulated in Article 35(1) and (2) of the former Employment Insurance Act, it constitutes a case where daily wage can be calculated pursuant to Article 19(1) of the former Labor Standards Act, Articles 2 and 3 of the Enforcement Decree of the former Labor Standards Act, and Article 35(2) of the former Employment Insurance Act, and it is difficult to deem that the standard wage ought to be calculated by applying Article 35(3) of the former Employment Insurance Act. In the same regard, it is difficult to deem that Plaintiff 26 is the average wage for Plaintiff 26, the ordinary wage for the remaining Plaintiffs, and the Defendant’s disposition calculated based on this premise is justifiable.

On the contrary, the lower court, which held that the average wage and daily wage should be calculated in accordance with Article 4 of the Enforcement Decree of the former Labor Standards Act, is erroneous in interpreting and applying Article 4 of the former Enforcement Decree of the Labor Standards Act and Article 35 of the former Employment Insurance Act, on the premise that Article 4 of the former Enforcement Decree of the Labor Standards Act shall apply when it intends to calculate the daily wage that serves as the basis for calculating job-seeking benefits pursuant to Article 35 of the former Employment Insurance Act, and that this case satisfies the requirements of the above provision

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)