[1] In a case where a driver’s income other than the taxi commission has been recognized as an individual’s income, whether the transportation income other than the taxi commission is included in the wage (affirmative)

[2] The method of calculating the average wage of a taxi driver for business use using transportation income other than taxi commissions as individual income

[1] In a case where a transportation company receives a free disposal of the remaining income after deducting a taxi commission from daily transportation income as an individual driver's income, in addition to paying a certain amount according to the number of actual work days per month to the taxi driver under its jurisdiction, the remainder after deducting a taxi commission, which is the individual driver's income, shall be deemed to have paid for the work in consideration of the unique characteristics of the taxi driver's work form and the convenience of calculation. Thus, this also constitutes wages.

[2] The amount of transportation revenue, other than the taxi commission, included in the wages of a taxi driver for business use, is not directly paid by the transportation company that is the employer to its employees, so it is not easy to grasp the amount, and the amount varies depending on the working hours and desire of the driver, the difference between passengers, the distance of movement, etc. Therefore, the average wage of the driver is not calculated in accordance with Article 19 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) and Articles 2 through 4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997). In this case, it is not possible to calculate the amount of the average wage of the worker in accordance with Article 5 of the same Act and the proviso of Article 4 subparagraph 2 of the Industrial Accident Compensation Insurance Act, and if the Minister of Labor does not pay or publicly notify the amount of the average wage of the worker in question, it shall be calculated based on the standard amount of the worker.

[1] Article 18 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 19 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997), Articles 2, 3, 4, and 5 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 5320 of March 27, 1997), Article 4 subparagraph 2 of the Industrial Accident Compensation Insurance Act

[1] Supreme Court Decision 91Da36192 delivered on December 24, 1993 (Gong1994Sang, 494) Supreme Court Decision 95Nu17410 delivered on September 10, 1996 (Gong1996Ha, 3040)/ [2] Supreme Court Decision 90Nu2772 delivered on April 26, 1991 (Gong191, 1524)

Park Young-young (Attorney Jeong-ju et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

The non-approval of an application for correction of average wages made by the Defendant against the Plaintiff on August 4, 1995 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

On October 6, 1994, while the plaintiff was employed by the non-party limited liability company, as a taxi driver, the plaintiff was receiving medical care benefits with the approval of medical care from the head of the Changwon Regional Labor Office on the brain light on October 6, 1994. After May 1, 1995, the defendant succeeded to the business from the head of the above Changwon Regional Labor Office and the head of the above Changwon Regional Labor Office on the basis of the average wage, which serves as the basis for the plaintiff's payment of the above suspension benefits, was calculated on the basis of the basic salary and various allowances, etc. that the plaintiff received directly from the above company each month. On August 1, 1995, the above average wage was applied for the correction of the average wage based on the plaintiff's claim that in addition to the above basic wage, the part other than the amount paid by the plaintiff to the company with daily transportation revenue (the taxi commission) should be included in the calculation of the remaining amount of temporary layoff benefits. However, the defendant did not dispute between the parties.

2. Whether the disposition is lawful;

In light of the whole purport of oral arguments and the result of the inquiry into the facts as to Gap evidence 5-1 through 14, Gap evidence 5-1 through Eul evidence 6-1, Eul evidence 1, 2, Eul evidence 12 and Eul evidence 12, and the testimony of the witness subordinate to this court and the result of the inquiry into the fact that the above limited liability company prior to the above disaster, the above limited liability company receives a certain amount of transportation earnings, such as daily transportation earnings, from its affiliated drivers including the plaintiff from the above accident before the above accident occurred until the above accident occurred, and receives a free disposition with the driver's income, while it receives a basic wage of 250,000 won per month and receives various allowances for drivers according to the actual working days of every month, the average monthly wages of all workers who work as a driving engineer and mobile device operating personnel shall be calculated with the average wage of 868,056 won per month and the remaining amount of monthly transportation earnings after deducting the amount of daily transportation commissions paid to the driver, referring to the judgment of 96.10 days per month.

However, it is not easy to grasp the amount of transportation revenue included in the above wages because the transportation company, which is the employer, is not directly paid to the driver under its jurisdiction. Since the amount of transportation revenue varies depending on the hours and desire of the driver, the number of passengers, and the distance of movement, etc., the average wage of the driver under the above provisions of Article 19 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) and Articles 2 through 4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997) cannot be calculated pursuant to Article 5 of the Enforcement Decree of the same Act and Article 4 subparagraph 2 of the Industrial Accident Compensation Insurance Act, it is inevitable to determine the amount of transportation revenue by the transportation company, which is the employer, separately determined by the Minister of Labor or publicly announced by the Minister of Labor, and if the Minister of Labor does not set or publicly announced, it shall be calculated based on the average wage of the worker under the same kind of 2.

Therefore, without including the Plaintiff’s personal income in the amount of wages, the Defendant calculated the average wage on the basis of only the wage that the Plaintiff received from the said company, and paid temporary layoff benefits, etc. on the basis of this, but did not approve the Plaintiff’s application for correction of the average wage. This is therefore, it shall not be deemed unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is justified, and the costs of lawsuit are assessed against the losing defendant, and it is so decided as per Disposition.

Judges Park Ho-ho (Presiding Judge), dilution leap