(영문) 대전고등법원 2019.9.26. 선고 2019나89 판결

The defendant shall pay to the plaintiffs the amount of money in attached Form 2, each of the "total sum" column for each plaintiff's statement of claim amount and the amount of award amount, and each of the amounts in the "total sum of principal" column, with 6% per annum from January 8, 2014 to September 26, 2019, and 20% per annum from the next day to the day of full payment.

2. All costs of the lawsuit are borne by the Defendant.

3. Paragraph 1 can be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The same as the Disposition (the plaintiff reduced this claim to this court after the second remand).

2 Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and all of the plaintiffs' claims corresponding to the revocation shall be dismissed.

Reasons

1. Progress of lawsuit and scope of adjudication of this court;

① The Plaintiffs, as the production workers or their successors who were employed in the Defendant Company (the deceased on July 22, 2014, the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the part of the deceased on the proceedings; hereinafter referred to as the “Plaintiffs” as including Plaintiff Y, KZ, and LA, and net K, hereinafter referred to as the “Plaintiffs”); the Plaintiff’s interim payment of the annual average wage, including the difference between the annual average wage, calculated from July 1, 2007 to December 31, 2010; the annual average wage, including the annual average wage, calculated by the previous organization’s annual average wage, and the annual average wage, including the difference between the Defendant’s annual wage and the annual wage, and the annual average wage, from the previous organization’s interim wage.

② The court of the first instance acknowledged the Defendant’s obligation to pay legal allowances as to the difference between the statutory allowances calculated based on the fixed hourly ordinary wage, including the foregoing, by deeming all the remainder, excluding the meeting-type bonus and the meeting-type bonus for departments, etc. as ordinary wage. In addition, the Defendant recognized the Defendant’s obligation to pay the difference between the amount calculated based on the ordinary wage including the meeting-type, group’s premium, gift, and date-of-date subsidy (hereinafter referred to as “the total term of the above benefits”) and the amount calculated based on the ordinary wage, including the meeting-type, group’s premium, gift, and daily allowance (hereinafter referred to as “individual pension subsidy, etc.”) as above, as well as the amount calculated by subtracting the fixed amount of payment from the average wage calculated based on the average wage including the total amount of wage

③ As to the part against which the Defendant lost, some of the Plaintiffs appealed and extended the purport of the claim. Before the first remanding, this Court calculated statutory allowances and retirement allowances based on the hourly ordinary wage fixed in the same manner as the first instance court. The Defendant newly asserted that the instant appellate court’s bonus included the instant appellate trial in ordinary wages would violate the good faith principle, and that the said appellate court rejected it.

④ According to the Defendant’s final appeal, the first instance court reversed the part against the Defendant on the grounds that: (a) the Defendant’s first instance judgment did not constitute a fixed wage; (b) the Defendant’s payment was not made to a person who provided labor in king, even if he provided labor on the date of payment; (c) on the grounds that there was an explicit or implied labor-management agreement to pay the said agreement without asking a person who held office on the date of payment, or that there was a need to deliberate on the circumstances in which such a practice was established.

⑤ Prior to the second return, the Plaintiffs sought payment of the difference between the fixed amount of retirement allowances and the fixed amount of retirement allowances from July 1, 2007 to December 31, 2007, and the fixed amount of retirement allowances from January 1, 2010 to December 31, 2013, together with the fixed amount of statutory allowances and the fixed amount of retirement allowances from January 1, 2013 to December 31, 2013, and 115 Plaintiffs (including 55 Plaintiffs, including those who received interim settlement of retirement allowances until that time; hereinafter referred to as 115 Plaintiffs, including the fixed amount of retirement allowances, and the fixed amount of retirement allowances from July 1, 207 to December 31, 201, the Plaintiffs sought payment of the fixed amount of individual retirement allowances including the fixed amount of retirement allowances and the fixed amount of retirement allowances (the fixed amount of retirement allowances from July 1, 207 to December 13, 2013).

④ The lower court deemed the Plaintiffs’ primary and preliminary claims as the selective claim with the order of trial and determined as follows. In other words, the lower court’s primary claims (hereinafter “the first selective claim”) included regular bonuses, but sought additional payment of statutory allowances and retirement allowances based on the re-determined ordinary wage by adding regular bonuses as above is in violation of the good faith principle. The Defendant, regardless of actual work performance, paid the conjunctive claim (hereinafter “the second selective claim”) to all employees who were employed by the Defendant, other than those who were employed by the military enlistment, and those who were employed by the military for not less than 6 months, regardless of the actual work performance, was subject to the Defendant’s collective agreement since June 7, 2004, which was established, based on the fact that the labor union belonging to the Defendant and the pertinent employees did not raise an objection to the retirement allowance and the labor-management agreement or practice as alleged by the Defendant, and thus, it is obliged to pay the unpaid weekly retirement allowance exceeding the ordinary wage, and thus, it is obliged to pay the unpaid weekly retirement allowance exceeding 10 hours.

7) The Defendant filed another appeal against the above judgment. The second remanding Supreme Court reversed the part against the Defendant on the grounds that the instant court’s bonus constitutes ordinary wages regularly and uniformly paid, and that the premium pay for holiday work and overtime work cannot be paid in duplicate on the grounds that the premium pay for holiday work and overtime work cannot be paid in duplicate. Accordingly, the Plaintiffs, after the second remanding, withdrawn the part that calculated statutory allowance and retirement allowance for holiday work and holiday work exceeding 40 hours a week in accordance with the purport of the second remand judgment and reduced the purport of the claim, thereby reducing the portion that calculated overtime work allowance for holiday work and holiday work exceeding 40 hours a week.

8) As to the judgment of this court prior to the second remanding, the Defendant’s losing part of the judgment against the Defendant, and the part of the first selective claim against the Plaintiffs, which was dismissed by the Plaintiffs, and thus, the Plaintiffs were dismissed. As to the first selective claim, the part of the first selective claim was finalized to be against the Plaintiffs as set forth in

(9) The scope of adjudication of this court shall be limited to the following claims:

A. Part of the claim for the difference between the statutory allowances and the amount already paid, calculated based on the re-fixed ordinary wage, reflecting the snow and drilling bonus from July 1, 2007 to December 31, 2013 (hereinafter referred to as the "period for claim in this case") with respect to the Plaintiffs, based on the snow and drilling bonus.

For 115 persons, such as CO, the part claiming the difference between the amount of retirement allowances calculated according to the re-determined average wage including legal allowances calculated according to the re-determination of property, including the amount of the principal, etc. of the personal pension and the amount of the previous payment, based on which the calculation of the average wage is based, based on the theory and reasoning bonus

2. Basic facts

A. Status of the parties

The Defendant (hereinafter “Defendant”) was divided into BN Co., Ltd. and established as KU limited liability company on June 7, 2004, and the trade name was changed to KX limited liability company on December 23, 2009, and was changed to A Co., Ltd. on August 20, 2010, and as of November 1, 2018, the trade name was changed to the Defendant Co., Ltd.; hereinafter referred to as “Defendant”) is a company engaging in the manufacture and sale of automobile parts.

(b) Details of the collective agreement and bonus payment rules;

Wages paid to the production workers belonging to the defendant are determined by the collective agreement (hereinafter referred to as the "instant collective agreement") concluded between the defendant and the Korea Metal Trade Union LB Branch (the BN Co., Ltd. was established on October 25, 2010, which was divided, and the name of the LH branch was changed as of October 25, 2010, and the change of the trade name of the defendant Co., Ltd.; hereinafter referred to as "the Trade Union of this case") and the defendant's bonus payment rules. The main contents of the instant collective agreement and the bonus payment rules are as follows.

(1) The instant collective agreement

Article 36(1) A company shall comply with the wage rules for its members, and the wage rules shall be determined after consultation with the union. 4. The standard of ordinary wages shall be the aggregate of the allowances listed in the following subparagraphs in the basic wage (2) production allowances (3) production allowances (4) production allowances (5) 6) 8) self-development allowances (8) 9) 8. The company shall pay 8-year bonus to its members in installments: Provided, That the payment rate shall be 20,000 won including the allowances listed in each subparagraph of Article 36(4) and 35 hours in addition to the basic wage (2,4,66,8, 100, 100 and 40% per annum, and the company shall provide 10% of the total retirement allowances and 40% of the total retirement allowances and 10% of the total retirement allowances paid by the union (10% of the total retirement allowances and 5% of the total retirement allowances).

Article 51 (Time of Work)1. Company shall be on the basis of eight hours a day and forty hours a week to its members, provided that Saturdays are paid holidays.3. Company’s starting and closing hours shall take effect as follows, and that time of change shall take place after consultation with the union: (i) Week Hours from 08:30, end hours 17:00 and end hours 06: Company shall take time of work in 12 hours a week or more under the control of the company, such as actual working hours, inquiry prior to commencement of work, quality control activities, cleaning, education, etc.; (ii) Company shall pay additional 50% of ordinary wages to its members on holidays under Article 54 (Holiday Work).

(2) Rules of bonus payment

Article 2(Scope and Scope of Application)2. Except as otherwise provided for in this Rule, the rate of payment of bonuses under Article 4 (Payment Rates) shall be 700% per annum, and detailed matters related to the payment rate shall be determined separately.The payment date of bonuses under Article 5 (Payment Time and Period of Payment) 1. The payment date of bonuses shall be February, April, June, June, August, August, October, October, October, October, 12 and New Year, and the payment date shall be determined separately.2. The period subject to bonus payment shall be the two months per month from the month preceding the month of the payment of bonuses.The application rate of bonuses to new workers and persons reinstated after temporary retirement for at least two months shall be as follows: 10% per annum or 70% per month from the payment period:

(c) Work less than one month during the period subject to the payment: The rate of bonus application to the leave of absence is as follows: (a) leave of less than 15 days during the period subject to the payment: 100% during the period subject to the payment; or leave of less than 1 month during the period subject to the payment: 70%; 50%; leave of less than 2 months during the period subject to the payment: 50%; and leave of absence during the period subject to the payment: 2 months or more during the period subject to the payment:

① The Plaintiffs received overtime work allowances, weekly work allowances, holiday work allowances, parking allowances, etc. from the Defendant on the basis of ordinary wage determined in accordance with the instant collective agreement, and the calculation formula is as follows.

Y overtime pay: Normal 2) X overtime work hours X 150% or weekly overtime work allowances: X 150% of the ordinary hour X overtime work hours.

C. Holiday allowance: 115 persons, such as ordinary daily pay X 150% BO from July 2007 to December 2013, 2013, including basic pay and statutory allowance calculated as above, were paid by the Defendant in interim settlement of the retirement allowance calculated in accordance with the following formula. In calculating the retirement allowance to be paid to 115 persons, the Defendant excluded the individual pension, organization premium, gift, and date-of-date subsidy paid to the above Plaintiffs from the total wage as the basis for calculating the average wage.

Retirement allowance: (The number of continuous service + the number of months in continuous service + the number of continuous service days + 365 days) x average wage for 30 days

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings.

3. Determination as to the cause of action

A. Summary of the parties' arguments

(1) The plaintiffs' assertion

① The bonuses paid by the Defendant to the Plaintiffs constitute ordinary wages. Nevertheless, the Defendant calculated overtime work allowances, weekly work allowances, holiday work allowances, parking allowances, and business suspension allowances (hereinafter “instant statutory allowances”) during the instant period of request to the Plaintiffs, excluded snow and drilling bonuses from ordinary wages, which serve as the basis for the calculation thereof. Accordingly, the Defendant should pay the Plaintiffs the difference between the instant statutory allowances and the respective statutory allowances already paid, and delay damages.

② When paying retirement allowances to 115 persons, including BO, by interim settlement, the Defendant omitted personal pension subsidies, etc. from the total wage, which forms the basis for calculating the average wage, and reflected the instant statutory allowances calculated based on the ordinary wage calculated by excluding snow and drilling bonuses as mentioned in the foregoing paragraph (1). As such, the Defendant is obliged to pay the difference between the amount of retirement allowances fixed according to the average wage lawfully calculated to the above Plaintiffs and the amount of retirement allowances

(2) The defendant's assertion

① Since the Defendant paid the snow- and drilling bonus only to the employees in office as of the payment date, the bonus for snow- and drilling does not constitute ordinary wages because it lacks the fixed working price and fixedness. Since personal pension subsidies, etc. are money and other valuables provided for welfare, and do not constitute wages, it does not constitute the average wage, which is the basis for the calculation of retirement allowances, is not included in the average wage.

③ Even if the snow and tin bonus falls under ordinary wages, the above bonus, in essence, is identical to the regular bonus paid in even number of months as stipulated in Article 5 of the bonus payment rules, and the essence thereof is the same. If the bonus is included in ordinary wages, the defendant bears an unexpected financial burden, thereby causing serious managerial difficulties. Thus, the plaintiffs' claim is in violation of the principle of good faith (hereinafter referred to as "the new rules").

B. Whether the bonus for snow and stone constitutes ordinary wages

(1) Relevant legal principles

Whether a certain wage falls under ordinary wages shall be determined on the basis of its objective nature based on whether the said wage is a money or goods paid to an employee as a consideration for a contractual work, and is not determined by the name of the wage or the short term of the payment cycle thereof. The term “price for contractual work” refers to money or goods agreed to be paid by an employer and an employee with respect to the work ordinarily prescribed in contractual work hours. The wage paid to an employee by providing labor exceeding contractual work hours or by providing labor other than those prescribed to be provided under a labor contract cannot be deemed as a consideration for contractual work, and thus, is not included in ordinary wages.

Furthermore, a certain wage must be paid in a fixed manner to belong to ordinary wages. This refers to a "a fixed nature in which it is confirmed that it will naturally be paid to an employee with respect to his/her work provided without any relationship with his/her achievements, achievements, or other additional conditions," and "fixed wage" refers to a minimum wage that an employee who has worked on a voluntary day, regardless of the name of the wage, retires on the next day and is entitled to the payment for the daily work, even if the employee retires on the next day. Therefore, if an employee provided a contractual work on his/her voluntary date, regardless of whether the additional conditions are met, it can be deemed that the amount determined in advance is fixed. On the other hand, even if an employee provided a contractual work, it cannot be deemed that the wage that is paid in accordance with additional conditions or whether the amount of payment is changed depending on whether the employee provided a contractual work at a certain time or not, regardless of whether the employee provided a contractual work at a certain time, is a person who is employed at the specific time and not at the specific time.

If wages are paid under such a condition, it is difficult to see that the wage has the nature of remuneration for so-called "fixed working hours", and even if an employee provided his/her work on a voluntary date, it is uncertain whether the employee's retirement would be fulfilled at the time of providing his/her work on an extended day, night, or holiday work on a voluntary date because the employee's retirement would not be paid at any time prior to the specific point of time, and thus, it shall be deemed a lack of fixedness. However, even if the employee retires before the specific point of time, if the amount of wages is paid in proportion to the number of working days, there is no substantial difference from the wage paid for each working day prior to the specific point of time, so fixedness shall not be denied to the extent that it is paid in proportion to the number of working days (see Supreme Court en banc Decision 2012Da893

(2) Facts of recognition

① The Defendant’s telegraphic transfer-based BN Co., Ltd. paid 100% for each of 2,4,6,8,10% and 150% for each of 2,4,6,8,10% for each of 12 months. The bonus payment rate was increased by 700% under the collective agreement in 1997, and 50% for each of 10% and 50% for each of the even number months. Since the establishment of June 7, 2004, the Defendant paid the bonus as above until now.

② Article 6 of the Defendant’s bonus payment rules sets the applicable rate of bonus based on the period of service during the period subject to bonus payment. The Defendant did not apply the above payment standards, but uniformly paid the snow and drilling bonus to all employees in office except those who were temporarily laid off due to enlistment in the military and those who were temporarily laid off for at least six months as of the payment date.

The Defendant did not pay eight workers retired prior to the date of payment of the snow and drilling bonus. Among them, two production workers subject to the instant collective agreement (which did not pay a snow bonus) who died on January 9, 2010 and two LF (which did not pay a stone bonus) who retired on May 17, 2010.

The above two persons and the union of this case did not raise an objection against the unpaid payment.

④ According to Article 14 of the Defendant’s Rules of Employment, with respect to a person temporarily laid off due to personal circumstances and enlistment, the payment shall not be made from the date of issuing the temporary retirement to the date before the date of issuing the reinstatement (paragraph (1)), and in the case of a person temporarily laid off due to personal illness, 60% of the ordinary wages shall be paid for the first six months, and

[Recognition] Each description of evidence and evidence set forth above and evidence set forth above and the purport of the whole pleadings set forth in the Evidence Nos. 3, 6, 9, 10, 15, 35, 36, 46 (including each number; hereinafter the same shall apply)

(3) Whether the case constitutes ordinary wages

① In light of the following circumstances revealed by the above facts, it is reasonable to deem that the bonus for snow and stone constitutes ordinary wages as it constitutes a fixed wage regularly and uniformly paid. In other words, the Defendant paid bonus only for the even number of months each year in the year of application of the collective agreement in 1997, which is divided into regular bonuses and snow and stone bonuses. The annual source and nature of the bonus are basically the same as regular bonus, and the obligation to pay it to the Defendant under the collective agreement is cancelled, and the bonus is in the nature of the remuneration for labor. In addition, the collective agreement and bonus payment rules of this case do not stipulate the conditions of employment as the requirements for the payment of snow and stone bonuses, and the Defendant, in principle, has paid snow and stone bonuses to all his employees other than temporary retirees and workers who have been temporarily retired for six or more months, regardless of actual work performance.

② As to this, although the Defendant did not pay the worker temporarily laid off due to enlistment in the military for a considerable period of not less than six months, and the worker temporarily laid off and dismissed before the date of payment, the Defendant asserts that the labor union or workers of this case did not raise any objection, and that the labor union or workers of this case did not have any explicit or implied labor-management agreement to add the requirements for receiving the said worker to the bonus on the date of payment, or that such a practice has been established. Therefore, the labor-management agreement does not constitute ordinary wages on the grounds that the remuneration for the labor and fixedness of the labor.

However, in light of the following circumstances, the Defendant’s above assertion cannot be accepted in light of the facts acknowledged earlier. In other words, the Defendant’s failure to pay bonuses to those who were laid off due to enlistment and those who were laid off for more than six months pursuant to the rules of employment that provide that they would not pay wages (all wages, such as basic wages included in ordinary wages) to them. Meanwhile, in order for a company to recognize specific practices existing inside the labor contract to constitute a content of the labor contract, such practices are normative fact that regulates labor relations in the company society, and are clearly approved or generally accepted as a normative fact that regulates labor relations in the company society, without raising any objection by the company’s members, and thus, it should be supported by the normative formula to the extent that it is established as a de facto system (see, e.g., Supreme Court Decision 2000Da50701, Apr. 23, 2002). However, the Defendant did not pay the pertinent labor-management agreement and the pertinent labor-management agreement between the retirement worker and the retirement worker.

(1) Relevant legal principles

Wages under the Labor Standards Act are all money and valuables that an employer pays to an employee as remuneration for work, and if the employer continues to and regularly pays to an employee and the payment of wages is crossed out by collective agreements, rules of employment, wage rules, employment contracts, labor contracts, labor practices, etc., regardless of their names (see, e.g., Supreme Court Decision 2011Da20034, Feb. 9, 2012).

(2) Determination by each item

(A) Personal pension subsidy

Comprehensively taking account of the purport of the arguments in the statement No. 1 and evidence No. 13-1 through 12 of the evidence No. 13, the detailed guidelines of the collective agreement of this case provide that the company shall pay the individual pension of KRW 25,000 per month for those who have served for not less than five years but less than ten years as the items of personal pension support for guaranteeing their old age, KRW 15,000 per month for those who have served for not less than ten years but less than 15 years, KRW 20,000 per month for those who have served for not less than 15 years and less than 20 years, and KRW 30,00 per month for those who served for not less than 20 years, and the defendant may recognize the fact that the personal pension subsidy paid by proxy is written in the statement of salary and have the obligation to pay it to the defendant through collective agreement and labor-management consultation, and it constitutes the basis for calculating the average wage.

(b) Collective contributions;

Comprehensively taking account of the purport of the argument in Gap evidence No. 3, the defendant purchased group insurance for more than one year after its establishment, and after the labor-management council agreed to subscribe to group insurance for more than 10,000 won per month with a ten-year maturity in 2004, it can be recognized that the defendant paid 10,000 won per month for its employees. If the employer subscribed to group insurance for former employees under a collective agreement and paid the total amount of premium for each month, it cannot be denied that it is the subject of work, even if it is not a direct payment to the employees, but a payment does not take place immediately. Thus, it is included in the total amount of wages that are the basis for calculating the average wage.

In full view of the purport of arguments in Gap evidence 4, Eul evidence 9-1 through 4, Eul evidence 7-5 through 14, the defendant presented several items around New Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Year's Day, Workers' Day, Year's Day, New Year's Year's Year's Year's Year's Year's Year's Day, New Year's Day, New Year's Day, New Year's Day, New Year's Year's Day, New Year's Day, and New Year's Year's Year's Year's Year's Year's Day, since the defendant presented several items around New Year's Year's Year's Day and New Year's Day, it includes labor-management's obligation to pay.

(d) a daily self-support fund;

In full view of the purport of the argument in Gap evidence No. 5, the labor-management council in April 4, 2004 agreed to increase the date subsidy from 20,000 to 30,000 won which the defendant provided to the employees under its jurisdiction, and thereafter the defendant may recognize the fact that the defendant has paid the right of goods equivalent to 30,000 won on the day of the living of the employees under its control through labor-management consultation. Accordingly, the date subsidy is included in the total wage, which is the basis for calculating the average wage, because it constitutes a wage with the nature of the consideration for work.

(3) Judgment on the defendant's assertion

The defendant asserts that the payment of the individual pension subsidy for five months from March 2005 to September 2005, and the group insurance premium for nine months from June 2003 to April 2004 was suspended, and therefore, it does not have the nature of compensation for work. However, in full view of the purport of the whole argument as seen earlier, it can be recognized that the defendant temporarily suspended payment during the above period in the process of renewal following the expiration of the pension and insurance period. Thus, it cannot be denied the nature of the individual pension subsidy and the group insurance premium as compensation for work. Thus, the defendant's above assertion is without merit.

(d) Calculation of accrued statutory allowances and retirement allowances;

(1) In addition to the calculation theory and estimated bonus of statutory allowances such as unpaid overtime allowances, the ordinary wage for each period of time determined by the plaintiffs (attached Form 3) is the amount stated in the ordinary wage for the calculation table of the difference in the statutory allowances. When calculating statutory allowances such as monthly overtime allowances to be received by the plaintiffs according to the above-mentioned statutory allowances calculation formula, the amount stated in each month's parking allowances, extended work allowances, weekly overtime work allowances, holiday work allowances, and temporary closure allowances shall be the amount stated in each "property fixed" column of the same Table. Meanwhile, since the plaintiffs received the amount stated in each "monthly payment" column of the same table under the name of statutory allowances, the legal allowances to be additionally paid by the plaintiffs shall be the sum stated in the "monthly parking allowances", "Extended work allowances", "regular work allowances", "regular work allowances", and "business suspension allowances" column 10 to the 20th 10th 7th 20 'monthly amount' column of each monthly payment.

(2) Calculation of accrued retirement pay

As above, each average wage of 115 persons, such as BO, calculated on the basis of the statutory allowances of this case, which are calculated on the basis of the fixed amount of ordinary wages, including personal pension subsidies, etc., is the same as the amount stated in the "average Wage" column of the "average Wage Calculation Table". If 115 persons, such as BO, are calculated on the basis of the defendant's retirement allowance formula recognized earlier based on the fixed amount of the average wage, it is the amount stated in the "retirement Pay" column of "retirement Pay" column of the same Table. Since 115 persons, such as BO, are persons who received the money stated in the "Retirement Pay" clause (e) of the same Table as retirement allowance from the defendant. Thus, since 115 persons, such as BO, etc., have to receive additional payment from the defendant, they shall be the amount stated in the column of "the difference of retirement allowance under the same Table."

E. Judgment on the Defendant’s assertion of violation of good faith

(1) Whether the act constitutes an attack by actual time limit

(A) The plaintiffs' assertion

The Defendant, prior to the second remanding, excluded from the issue of this case the defense of violation of the good faith principle as to the inclusion of the new and subsequent bonuses in ordinary wages in the previous court prior to the second remanding of the case, but asserted this assertion again at this court after the second remanding of the case, which constitutes an attack by actual time, and thus, is not allowed.

(B) Determination

(1) The means of attack and defense under Article 149 of the Civil Procedure Act refers to an attack and defense that may delay the conclusion of a lawsuit by either party by making an adequate time after the lapse of the pertinent time pursuant to the progress of lawsuit intentionally or by gross negligence. Determination of whether a new means of attack and defense was made after the lapse of the pertinent time ought to take into account whether a new method of attack and defense was not made even though there were objective circumstances that the parties could have anticipated to submit in the past, and whether a new method of attack and defense was granted trust that the other party and the court would not submit a new method of attack and defense. In addition, determination of whether a party’s intention or gross negligence was delayed not only the appellate court but also the first instance court, barring special circumstances, shall be made by comprehensively taking into account (see, e.g., Supreme Court Decision 2017Da10170, May 17, 2017).

② The Plaintiffs sought the difference between the Plaintiff and the Defendant based on the statutory allowances within the instant period of request based on the premise that the said bonus constitutes ordinary wages on the ground that the said bonus constitutes the same as the ordinary wages. Before the first remand, the Defendant asserted that the Defendant violated the principle of trust and good faith on the ground that, if the instant bonus is included in the ordinary wages through a preparatory document dated January 6, 2012, the Defendant Company and the pertinent union members violated the agreement to exclude the said bonus from the ordinary wages, and concluded a trial on the said assertion. Meanwhile, the Plaintiffs added and modified the claim for the first selective claim on the regular bonus and the second selective claim on September 15, 2014, and the Defendant did not constitute a violation of the principle of trust and good faith on the ground that the said bonus is not included in the ordinary wages, but did not constitute a violation of the principle of trust and good faith on the selective claim on November 18, 2014.

Nevertheless, the Defendant asserted that, in the grounds of appeal against this court’s judgment prior to the second remanding, the lower court did not render any judgment on the defense that the Plaintiff’s claim based on the premise that the bonus constitutes ordinary wages falls under the same kind of money, the Defendant did not err by omitting judgment or failing to perform its duty of explanation. However, the lower court determined that the Plaintiff did not err by misapprehending the legal doctrine on omission in judgment or the duty of explanation as to the above grounds of appeal. The lower court, after the second remanding the case, did not err by misapprehending the legal doctrine on omission in judgment or the duty of explanation. The Plaintiffs were included in ordinary wages in the second judgment after the second remanding the case. However, the Plaintiffs were included in the amount of bonus for snow and drilling as stated in the purport of the second judgment after the second remanding the case, but reduced the purport of the purport of the claim by withdrawing the duplicate payment of overtime or holiday work allowances, and the Defendant asserted that the Defendant

③ Taking account of the following circumstances, the progress of the instant lawsuit and the possibility of delaying the resolution of the completion of the instant lawsuit, etc., the Defendant’s second remanding to the court, thereby violating the good faith principle in this court.

The assertion should be viewed as an attack and defense method by practical time under Article 149(1) of the Civil Procedure Act.

A. The defendant's violation of the good faith principle that the plaintiff's claim was included in ordinary wages after the second return of about five years after the second return after the plaintiff's claim was added to and changed to the part concerning regular bonuses, and the second return after the second return of about five years after the second return.

The arguments will be new.

B. Although the Defendant initially asserted the violation of the good faith principle on the premise that the bonus for snow and tin was included in ordinary wages, the Plaintiff’s claim for additional statutory allowances from July 1, 2007 to December 31, 2010 at that time was made, and the claimant’s claim for additional retirement allowances is also 55, including the Plaintiff. However, the time limit for additional statutory allowances due to the change in the claim made on September 15, 2014 by the court prior to the second return was from July 1, 2007 to December 31, 2013. The claim for additional retirement allowances was also 115, including BO, and the premise was changed for deliberation as to whether the previous claim was in violation of the good faith principle.

C. The evidence submitted by the Defendant before the second remand was based on the premise that the Defendant violated the good faith principle as to the regular bonus paid by the Defendant in even number of months, and there is a need to hold a new additional hearing in order to determine as to the snow and prosecution bonus even if some of the materials are included in the materials related to the snow and prosecution bonus.

D. Although it cannot be deemed that there was an objective change in the time and time of the initial claim in the circumstances that the Defendant could have expected to submit a protest of the good faith principle as to wage claims based on the survey and prosecution bonuses before the second remanding, there is room to view that the Defendant granted trust that the Plaintiffs and the courts would not submit the above issues by excluding the above argument from the issues.

④ The Defendant’s above assertion cannot be exempted from dismissal.

(2) Whether it constitutes a violation of the good faith principle (preliminary determination)

(A) In a case where the contents of a labor-management agreement, such as a collective agreement, are null and void in violation of the compulsory provisions of the Labor Standards Act, the assertion on its invalidity would result in the disqualification of the legislative intent of the compulsory provisions. Therefore, such assertion cannot be deemed to be in violation of the principle of good faith. However, on the ground that the contents of the labor-management agreement violate the compulsory provisions of the Labor Standards Act, the application of the principle of good faith is not excluded without exception to the assertion on the invalidation of the labor-management agreement. The assertion on the invalidity of the labor-management agreement is not permissible only in exceptional cases where there are extenuating circumstances that agree to apply the principle of good faith prior to the application of the principle of good faith, notwithstanding the compulsory provisions of the Labor Standards

However, when determining whether to preferentially apply the principle of good faith rather than the mandatory provisions governing labor relations, it is necessary to sufficiently consider the legislative intent of the Labor Standards Act, which intends to set the minimum standard of working conditions and guarantee and improve the basic livelihood of workers. Moreover, the management status of an enterprise is an employer, and the corporate management status may change from time to time according to various economic and social circumstances. Thus, if rejection is made on the ground that the demand for additional statutory allowances, etc. by workers according to the determination of ordinary wage property would cause a serious operational difficulty or endanger the existence of the enterprise, it may result in the de facto transfer of risks arising from

Therefore, it should be carefully and strictly determined whether the employer’s additional statutory allowances, etc. cause serious managerial difficulties or threaten the existence of an enterprise, thereby violating the good faith principle (see Supreme Court Decision 2014Da27807, Apr. 23, 2019).

(B) Determination

In full view of the following circumstances acknowledged by comprehensively taking into account the aforementioned evidence, Gap’s evidence 1 through 13, 16, 18, 20 through 22, 24, Eul’s evidence 9, 10, 22 through 29, 32, 33, 37 through 43, 45, and 47 through 54, and the overall purport of the pleadings, even if the plaintiffs’ claim for the payment of legal allowances and retirement allowances in addition to ordinary wages for the payment of legal allowances and retirement allowances, it is difficult to conclude that such burden or aggravation may cause serious managerial difficulties as much as the defendant is unable to cope with, or may endanger the existence of the defendant company. Furthermore, the evidence submitted by the defendant alone does not constitute exceptional cases where there are special circumstances that give priority to the principle of good faith to the plaintiffs’ above additional claims.

The defendant's above assertion cannot be accepted.

① Supreme Court en banc Decision 2012Da89399 Decided January 12, 2013, 2013, which the Defendant cited as the ground for the Defendant’s assertion that the principle of good faith is violated, is merely just because it opens the applicability of the principle of good faith with respect to the regular bonus paid at a certain period exceeding one month in response to the work provided during a certain period. Unlike the regular bonus paid on an even number of months, the snow and drilling bonus, unlike the regular bonus paid on an even number of months, is prepared and managed a separate payment form, and is paid to the eligible number of persons, and its nature is different, the above judgment alone alone cannot be deemed as being applied to the assertion that the bonus is included in ordinary wages.

② The evidence presented by the Defendant alone is insufficient to readily conclude that the practices of the labor-management agreement between the Defendant and the labor union in the instant case, excluding the snow and drilling bonus from ordinary wages, or that both parties set the level of wages on the premise of the agreement. Even if the Defendant and the labor union in the instant case agreed to exclude the snow and drilling bonus from ordinary wages and set the level of wages on the premise of such agreement, such circumstance alone does not constitute an exceptional case where: (a) the Plaintiffs’ seeking additional statutory allowances and retirement allowances in addition to ordinary wages did not constitute a state that is unreasonable in light of the concept of justice; or (b) the application of the principle of good faith prior to the enforcement of the Labor Standards Act, despite the strongness of the Labor Standards Act.

(3) Where the bonus for snow or stone falls under ordinary wages, it seems clear that the Defendant’s actual wage increase rate should be increased up to the Defendant’s average wage increase rate, but it is difficult to understand the specific numerical value only with the evidence submitted by the Defendant.

④ The additional shares calculated by the Defendant, including the ordinary wage, are calculated based on the amount of bonuses calculated by the Defendant, including the ordinary wage, from around KRW 280 million to KRW 560 million each year from around KRW 2007 to 2013, and the ratio of the net income to KRW 11.9% per annum (the additional shares to be borne, etc. as to whether a new rule has been violated shall, in principle, be taken into account on the basis of the timing of payment of legal allowances, etc. claimed by the Plaintiffs. In addition, it is unreasonable to consider the circumstances after the payment period as the subject of the principle of good faith defense as the subject of major consideration of the defense of the principle of trust and good faith is different depending on the time of filing the lawsuit and the termination period thereof).

(unit: source)

A person shall be appointed.

⑤ From 2010 to 2013, the Defendant appropriated the burden arising from ordinary wage litigation as the appropriation debt transfer amount in advance, and deducted the expense from the pertinent net income and removed uncertainty about the management risk.

④ Since the statutory allowances and retirement allowances that claim an additional bonus in addition to ordinary wages is from July 1, 2007 to December 31, 2013, the statutory allowances and retirement allowances that were paid after January 1, 2014, or the management index after 2014 cannot be deemed as a major factor in determining whether the plaintiffs’ claim in this case violates the good faith principle.

F. Sub-determination

The defendant is obligated to pay damages for delay calculated at the rate of 6% per annum under the Commercial Act from January 8, 2014 to September 26, 2019, which is the date when the plaintiff (the plaintiff KY, KZ, and LA, according to the inheritance shares inherited from the GK) and the sum of the statutory allowances and unpaid retirement allowances (attached Form 2), and the sum of principal in the "total sum by the plaintiff" in the plaintiff's list of claims amount and the cited amount list, as to each amount entered in the column of "total sum by the plaintiff", after the date when the legal allowances of this case occurred or interim settlement date, and as requested by the plaintiffs, from January 8, 2014 to September 26, 2019, which is the date when the decision of this court is rendered, 6% per annum under the same Act and 20% per annum under the Special Act on

[1] Under Article 3(2) and (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, Article 1 and Article 2(1) of the Addenda to the Regulations on Special Cases Concerning Expedition, etc. of Legal Proceedings (Amended by Presidential Decree No. 29768, May 21, 2019); Article 1 and Article 2(1) of the Addenda to the former Regulations on Special Cases Concerning the Legal Rate of Legal Proceedings (wholly amended by Presidential Decree No. 26553, Sept. 25, 2015); Article 2(1) of the Addenda to the former Regulations on Special Cases Concerning the Encouragement, etc. of Legal Proceedings (wholly amended by Presidential Decree No. 26553, Sep. 25, 2015); Article 2(1) of the former Regulations on Legal Proceedings, the first instance court’s pleading is concluded as of October 1, 2015, which

4. Conclusion

Each of the plaintiffs' claims shall be accepted by all of them on the grounds of their reasoning. Since the judgment of the court of first instance is partially unfair, the judgment of the court of first instance shall be reversed, including the changed claims, after the second remand of the judgment of the court.

Judges

The presiding judge, Park Jong-young

Judgment of the Supreme Court

Judge Lee Jae-soo

Note tin

1) [Attachment 4] [Attachment 4] is divided into [Attachment 4-1] and [Attachment 4-2], and [Attachment 4-1] is related to 5 persons, such as G, etc., who received interim settlement of retirement pay from the time of the lawsuit, and [Attachment 4-2] is related to the plaintiff BO, etc., who received interim settlement of retirement pay thereafter, and [Attachment 4-2] includes part of which interim settlement has been received again among 55 persons, such as G, and is indicated only in [Attachment 4].

2) According to the instant collective agreement, etc., the Defendant’s ordinary wage calculation method is “(basic pay + job allowance + production allowance + allowance for continuous service + qualification allowance + TRC allowance + self-development allowance + ＋ self-development allowance + functional training allowance + 240 hours).”