Plaintiff

The Korea Institute of Arts, the Korea Institute of Arts, the Korea General Assembly of the Korea Institute of Education (Law Firm Shinsung, Attorney Yellow-gu, Counsel for defendant-appellant

October 14, 2009

Busan District Court Decision 2008Gadan115334 Decided January 20, 2009

1. The amendments to paragraphs 1 and 2 of the judgment of the first instance, including the plaintiff's claim expanded in the trial to the following:

A. The defendant shall pay to the plaintiff 24,65,922 won and 7,411,040 won per annum from January 1, 2006 to December 23, 2009; 20% per annum from December 24, 2009 to the date of full payment; 13,783,375 won per annum from March 1, 2007 to January 20, 209 to the date of full payment; 5% per annum from January 21, 2009 to the date of full payment; 20% per annum from January 21, 2009 to the date of full payment; 3,471,507 won per annum from September 11, 2009 to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 75% is borne by the Plaintiff, and 25% is borne by the Defendant, respectively.

3. The part for which no provisional execution has been declared by the first instance court among the provisions of subparagraph 1 (a) may be provisionally executed;

[ claim] The defendant shall pay to the plaintiff 89,538,915 won and 54,331,680 won among them, 5% per annum from January 1, 2006 to the service date of a copy of the complaint of this case, 26,390,00 won per annum from March 1, 2007 to the service date of a copy of the complaint of this case, 20% per annum from the next day to the day of complete payment, 8,817,235 won per annum from the delivery date of a copy of the complaint of this case to the day of complete payment (the plaintiff extended the claim by adding each claim of 250,00 won for long-term continuous service allowances, 7,905,00 won for retirement pension, 662,35 won each from the next day to the day of complete payment).

[Purpose of appeal] The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff's claim against the cancellation shall be dismissed.

[Purpose of Incidental Appeal] The part of the judgment of the court of first instance against the plaintiff corresponding to the amount ordered to be additionally paid shall be revoked. The defendant shall pay to the plaintiff 2,845,950 won with 20% interest per annum from the delivery date of the copy of the complaint of this case to the full payment date.

1. Claim for unpaid wages from February 2002 to December 2005

A. Conclusion of claims for unpaid wages

The Defendant did not pay the Plaintiff KRW 54,331,680 in total among the wages, allowances, bonuses, etc. from February 1, 2002 to December 2005 (including KRW 1,120,300 in total, KRW 2,902,160 in February 2005, KRW 3,338,580 in December 1, 2005, and KRW 54,331,680 in compensation for delay) as the Defendant employed the Plaintiff from March 1, 2001 to the High University Hospital operated by the Defendant. Since there is no dispute between the parties, the Defendant is obligated to pay the Plaintiff KRW 54,31,680 in compensation for delay.

(b) Extinctive prescription;

(1) Completion of the statute of limitations

Of the unpaid wage claims from February 2002 to December 2005, the remainder (from February 9, 2002 to May 2005) excluding the bonus claims from February 9, 2005 and December 12, 2005 excluding the remainder (from February 2002 bonus to May 2005) is apparent that the three-year extinctive prescription period under the Labor Standards Act has expired retroactively from August 22, 2008, the filing date of the lawsuit in this case. Thus, it is reasonable to deem that the remainder of the above claim was extinguished by the completion of extinctive prescription, and the defendant's defense pointing this out is with merit.

(2) Re-defense

Plaintiff’s assertion

㉠ 원고가 2002. 11. 29. 2002년의 체불임금에 관하여 채권가압류의 보전조치를 하였고, ㉡ 피고는 2003. 6. 2.자 공정증서, 2003. 1. 15.자 합의서, 2004. 5. 24.자 공문, 2005. 5. 16.자, 2005. 8. 29.자 각 주간 복음소식지, 2005. 9. 5.자 공정증서 작성·배부 등을 통해 자신의 원고에 대한 채무를 승인하였을 뿐 아니라, ㉢ 2003. 7. 29.자, 2004. 1. 6.자, 2004. 10. 1.자 각 체불임금 청산대책 회의 및 2004년 교수협의회와의 임·단협, 2005, 2006년 노동조합과의 임·단협 특별협약 과정에서도 체불임금을 지급하기로 합의하였으며, ㉣ 피고가 제1심 2008. 10. 6.자 준비서면에서 원고의 체불임금을 인정하고 지급유예약정에 의한 지급기일 미도래만을 주장하였고, ㉤ 피고 재정부 소속 담당직원이 이 사건 소 제기 직전에 원고에게 체불임금내역서를 발급·교부하였으며, ㉥ 피고는 2009. 2. 5. 고신의대교수협의회 회장에게 원고의 미지급 임금이 포함된 2005년도 체불임금 및 2002년도부터의 각종 체불수당을 인정하는 취지의 미지급 임금확인서를 작성·교부하였으므로, ㉦ 원고의 피고에 대한 2005년 9, 12월 상여금 청구를 제외한 2002. 2.부터 2005. 12.까지의 미지급 임금 청구는 소멸시효가 중단되거나 소멸시효 완성 후에 피고가 채무를 승인함으로써 그 시효의 이익을 포기하였다. ㉧ 그렇지 않다 하더라도 위와 같은 제반경위에 비추어 볼 때, 피고의 소멸시효 항변은 신의칙에 반하는 것으로 허용될 수 없다.

(C) Judgment

In full view of the purport of the argument in Gap evidence No. 7, the plaintiff et al. filed an application for provisional seizure of claims against the above Corporation with the debtor as Busan District Court 2002Kadan43651, the third debtor as the defendant and the defendant as the National Health Insurance Corporation. On November 19, 2002, it can be acknowledged that the above provisional seizure was issued by the above court, and that the decision was served on the above Corporation. However, on February 25, 2003, the fact that the plaintiff et al. filed an application for cancellation of execution of the above provisional seizure and served a delivery accordingly is obvious with this court, and Article 175 of the Civil Act provides that "the provisional seizure, provisional seizure, and provisional disposition is revoked upon the request of the right holder or because it does not comply with the provisions of law, the interruption of prescription becomes retroactively null and void." Accordingly, this part of the plaintiff's assertion is without merit.

Meanwhile, even if the interruption of the extinctive prescription is interrupted, if the cause for interruption ceases to exist (Article 178(1) of the Civil Act), and if an obligor renounces the benefit of prescription by approving the obligor’s obligation to the obligee after the completion of the extinctive prescription, the extinctive prescription takes place from that time (see Supreme Court Decision 2009Da14340, Jul. 9, 2009). Thus, the Plaintiff’s notarial deed as of Jun. 2, 2003; agreement as of Jan. 15, 2003; agreement as of May 24, 2004; agreement as of May 16, 2005; agreement as to the Plaintiff’s 20-year statute of limitations as to the payment of overdue wages as of May 16, 2005 (see Supreme Court Decision 2009Da14340, Aug. 22, 2008); and it does not affect the Plaintiff’s conclusion that it did not affect the Plaintiff’s employees’s completion of the extinctive prescription.

Next, as to the preparation of the authentic deed of September 5, 2005 between the health team, the defendant and the non-party 2, who is the employee of the defendant and the defendant, on September 5, 2005, the fact that the authentic deed of debt repayment contract was prepared and issued with the content that the defendant approves the obligation of KRW 35,984,565,05, which includes the plaintiff's unpaid wages, does not conflict between the parties. However, approval as interruption of the statute of limitations or waiver of the statute of limitations interest as a waiver of the statute of limitations interest is established by the fact that the debtor who is the party to the contract who is the party to the benefit of the statute of limitations loses the right due to the completion of the statute of limitations or his/her agent is aware of the existence of the right (see Supreme Court Decision 2006Da22852, 22869, Sept. 22, 2006).

In addition, there is no evidence to acknowledge the Plaintiff’s assertion of the above material material, and there is no evidence to support the Plaintiff’s assertion (the evidence No. 6, which did not recognize the extinctive prescription above, is merely an unpaid wage confirmation as to bonus in December 9, 2005), and the remaining circumstances cited by the Plaintiff alone do not lead to the recognition of the Defendant’s claim for wages unpaid or that the statute of limitations defense contravene

However, according to Gap evidence No. 18, the plaintiff's re-appeal is justified within the scope of the above amount, and the defendant's defense of extinctive prescription corresponding to the above amount is not justified. The plaintiff's re-appeal is based on the plaintiff's re-appeal based on the daily re-appeal news bulletin of August 29, 2005, and the defendant's defense of extinctive prescription is not justified.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 7,41,040 won in total as bonus in December 2005 and damages for delay calculated at the rate of 5% per annum under the Civil Act from January 1, 2006 to December 23, 2009, which is the date of the decision of the court of the first instance, from January 1, 2006 to the date of the decision of the court of the first instance, and from December 24, 2009 to the date of full payment under the Special Act on the Promotion, etc. of Legal Proceedings and the Labor Standards Act (it is reasonable to dispute the existence and scope of the defendant's obligation to pay to the court until the date of the decision of the court of the first instance, and it is reasonable to dispute the existence of all or part of the wage whose payment has been delayed, so the above Special Act and the Labor Standards Act shall apply 20% per annum from the day after the decision of the court of the first instance)

2. A claim for wages during the training period;

A. Formation of claim for wages

The court's explanation on this part is the same as the corresponding part among the reasons for the judgment of the court of first instance (from No. 2 to No. 410). Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(b) Calculation of wages;

According to the evidence evidence No. 3, since it is recognized that the plaintiff received monthly average salary (the principal salary + the bonus) from June 6, 2006 to August 28, 2006, the plaintiff's average monthly salary from November 6, 2006 to February 28, 2007 can be ratified as the same. However, the above amount is recognized as the above, since the long-term continuous service allowance recognized below and the family allowance amount of KRW 50,000 per month was reduced, the plaintiff's average monthly salary from November 6, 2006 to February 28, 2007 is KRW 3,775,603, including 130,000 won.

As to this, the plaintiff argued that the above amount should be calculated on the monthly average salary by adding up retirement pension, missionary mission fee, employee membership fee, congratulatory allowance, congratulatory allowance, donation, earned income tax, resident tax, etc. However, in light of the fact that the plaintiff did not raise any particular objection even though he was paid benefits after deducting retirement pension, resident tax, etc. from June 2006 during his overseas training period to August 2006, employees fees, congratulatory money, etc. should be deducted equally as in the Republic of Korea, regardless of whether the plaintiff is in service or in the Republic of Korea; wage and salary tax, resident tax, the defendant who is the employer bears withholding duty, the above argument by the plaintiff cannot be accepted

C. Sub-committee

Therefore, the defendant has an obligation to pay 14,274,82 won in total to the plaintiff during the training period (i.e., KRW 3,775,60 x KRW 12/365 x KRW 115 x less than won) and 13,783,375 x the amount cited in the judgment of the first instance court among them, as the plaintiff seeks, 5% per annum under the Civil Act from March 1, 2007 to January 20, 209, which is the date of the first instance judgment from January 21, 209, 209, and 20% per annum from the day after January 21, 209 to the day of full payment, 9% per annum under the Labor Standards Act or 10% per annum under the Labor Standards Act from the day after the date of the second instance judgment against the defendant's claim for late payment (see Supreme Court Decision 91,507Da1909, Sept. 1, 2009).

3. A request for addition in a trial;

(a) Long-term continuous service allowances;

The defendant is a worker for at least five years since April 2006, and according to the defendant's provision on the payment of teachers' remuneration, the defendant stipulates that the defendant shall pay the worker for at least five years a month with the maximum continuous service allowance of at least 50,000 won a month, as there is no dispute between the parties. Thus, the defendant is obligated to pay the plaintiff the total amount of the long-term continuous service allowance from April 2006 to August 200.

(b) Family allowances;

(1) The plaintiff's assertion

The defendant is obligated to pay to the plaintiff KRW 4,575,00 in total, and KRW 330,00 in total, KRW 7,905,00 in total, and KRW 330,00 in total, from April 2006 to May 2009.

(2) Determination

Since the plaintiff submitted a preparatory document dated June 11, 2009, which contains the highest meaning of family allowances, and then specifically claimed family allowances through the expansion of the claim on September 7, 2009, which was before six months passed from the date of the submission of the preparatory document on June 11, 2009, it is reasonable to view that the claim for family allowances before June 10, 2006, which was retroactively calculated from June 11, 2009, has expired three-year extinctive prescription under the Labor Standards Act, and the defendant's objection to this point has merit.

In addition, as seen earlier, the Defendant’s payment of family allowances to the Plaintiff during overseas training from September 1, 2006 to November 5, 2006 is unnecessary. Accordingly, the period for calculating family allowances to be paid by the Defendant to the Plaintiff falls under 3.5 months from June 11, 2006 to August 31, 2006, and the period from November 6, 2006 to May 31, 2009 are 3.5 months, and the Plaintiff’s payment of family allowances to the Plaintiff was not claimed by 90,50,000 won (see, e.g., Supreme Court Decision 200, Apr. 1, 2006; 208, the Plaintiff’s family allowances was not claimed by 90,000 won for the Plaintiff’s family members for whom the Plaintiff’s family members were entitled to the payment of allowances to the Plaintiff’s family members, and the Plaintiff’s family members were not entitled to the payment of allowances to the Plaintiff’s family members.

(c) Retirement pension subsidies;

The plaintiff asserts that the defendant did not pay KRW 662,235,00 to the plaintiff from May 2007 to October, 200. However, the statement of evidence No. 17 alone is insufficient to recognize it, and there is no other evidence, the plaintiff's above assertion is without merit.

D. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 20% per annum from September 11, 2009 to the date of delivery of a copy of the complaint of the instant unit to the date of full payment (the existence of all or part of the wage delayed in payment is not recognized to be appropriate for the court to dispute the existence of all or part of the wage delayed in payment) as provided in the Labor Standards Act, as the Plaintiff seeks to pay to the Plaintiff the total amount of the long-term continuous service allowance and family allowance of 2.9.8 million won and the damages for delay claimed by the Plaintiff.

4. Conclusion

Therefore, the defendant is obligated to pay the plaintiff a total of 24,65,922 won (2, 9, 12.2, 7,411,040 won as bonus in December 2005 + wage of 14,274,882 won during the training period + long-term continuous service allowance of 250,000 won + family allowance of 2.730,000 won) and damages for delay as mentioned above. Thus, the plaintiff's claim in this case is justified within the above recognition scope, and the remaining claims are dismissed as there is no reason. Since the judgment of the court of first instance is partially unfair, it is so decided as per Disposition by the court of first instance, including the plaintiff's claim extended in the trial, and it is so decided as per Disposition.

Judges Yoon Sung-sung (Presiding Judge)