[1] In a case where an employer issues a standby order to an individual worker according to the business needs for the reason attributable to the employer, whether the employer should pay the business shutdown allowance to the employee (affirmative)

[2] Whether the right to claim a shutdown allowance constitutes a priority claim under the Debtor Rehabilitation and Bankruptcy Act (affirmative)

[1] “Suspension of work” under Article 46(1) of the Labor Standards Act includes cases where individual workers have intent to provide labor under a labor contract but their employment has been rejected or impossible against their will. Thus, the concept of “temporary retirement” includes “temporary retirement.” The term “temporary retirement” under Article 23(1) of the Labor Standards Act refers to an employer’s disposition prohibiting a certain worker from performing his/her duties for a certain period of time when it is impossible or inappropriate to allow him/her to perform his/her duties. The term “a standby order” refers to a temporary measure that prevents a worker from temporarily performing his/her duties due to his/her current position or duties in the future. Thus, if an employer issues a standby order for an individual worker due to his/her cause falls under the case of temporary retirement under Article 46(1) of the Labor Standards Act and thus, the employer is obligated to pay the temporary retirement allowance.

[2] Article 179(1)10 of the Debtor Rehabilitation and Bankruptcy Act provides that “worker’s wage” as a priority claim, and Article 2(1)5 of the Labor Standards Act provides that “wages refer to wages, salaries, and any other money or valuables, regardless of their titles, which the employer pays to an employee as remuneration for work.” Although Article 46(1) of the Labor Standards Act provides that “where a business shuts down due to a cause attributable to an employer,” a shutdown allowance paid to a business shuts down is weak in that it does not provide actual work, it is closely related to the provision of labor and the provision of labor in that it does not provide actual work, but in that it is paid as the object of preventing the employee from providing labor regardless of his/her will even if the employee wishes to provide labor, the right to claim temporary shutdown allowance constitutes a priority claim under the Debtor Rehabilitation Act.

[1] Articles 23(1) and 46(1) of the Labor Standards Act / [2] Article 179(1)10 of the Debtor Rehabilitation and Bankruptcy Act; Articles 2(1)5 and 46(1) of the Labor Standards Act

[1] Supreme Court Decision 2007Du10440 Decided September 10, 2009 (Gong2009Ha, 1655), Supreme Court Decision 2009Da86246 Decided October 13, 201 (Gong201Ha, 2316)

[Attachment 1] List of Plaintiffs (Law Firm Han-young, Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

See Attached List of Plaintiffs (LLC, Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

See Attached List of Plaintiffs (LLC, Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

Non-party 2 (Law Firm Shin & Yang, Attorneys Hun-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na124917 decided December 23, 2011

The part of the judgment of the court below against the plaintiffs other than plaintiffs 72, 10, 18, 23, 53, and 79 among the plaintiffs listed in the attached list of plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. The plaintiffs' appeals listed in the attached list of plaintiffs (1) and (3) and appeals against plaintiffs 72, 10, 18, 23, 53, and 79 are all dismissed. The costs of appeal between plaintiffs 72, 10, 18, 23, 53, and 79 are assessed against each of the defendants.

The grounds of appeal are examined.

1. As to the grounds of appeal by the Plaintiffs listed in the Plaintiffs’ List (1) and (3)

A. Regarding ground of appeal No. 1

The legitimacy of the standby order for workers should be determined based on whether there exists a reason for the standby order or whether there is a violation of the procedural provisions concerning standby order for workers and the degree of such violation (see Supreme Court Decision 2009Da86246, Oct. 13, 201).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the standby order in this case is valid on the ground that it is reasonable to have a reasonable ground, since it is difficult to find the disadvantage of the plaintiffs due to the standby order in their living as a result of the standby order in this case exceeds the necessity of the above business, and it is difficult to view the standby order in this case to have been maintained for an unreasonably long period of time to the extent that it is unreasonable under social norms.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles as to the legitimacy of a standby issuance, by misapprehending the rules of logic and experience and exceeding the bounds of the

B. Regarding ground of appeal No. 2

The court below held that the provision on the standby order which can be issued to a person who has been recognized as an excessive won under the circumstances of business management among the personnel regulations on the sales of Daewoo Motor Vehicles is deemed to have been placed under the premise of the situation of retirement of workers through the procedure such as the atmosphere of assignment and the atmosphere of personnel management, etc. In light of the circumstances, etc., since the standby order in this case is recognized as a temporary and exceptional measure in light of the principle of good faith, it is reasonable to view that the provision on the treatment of a person waiting for personnel management does not apply to the plaintiffs even if the plaintiffs are deemed to be a excessive won

In light of the records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to the interpretation and application of personnel regulations or by misapprehending the legal principles as to the interpretation and application scope of personnel regulations.

C. Regarding ground of appeal No. 3

On January 12, 2006, the lower court recognized that the monthly salary for the portion of the monthly leave which occurred until December 2005 was to be paid on January 12, 2006 between the treatment automobile sales trade union and the previous monthly leave system, and that the monthly salary for the portion of the monthly leave which was not paid until December 2005 was paid on January 2006, and accordingly, the monthly salary was paid on January 25, 2006 to the Plaintiffs collectively. The above monthly salary payment in the year 2005 was irrelevant to the wage for the business suspension period of the instant standby order, and except that it was uniformly paid to all employees of the treatment automobile sales, and that the payment of the monthly salary was made on the basis of the mobile phone sales that was paid by an individual on the ground that it was not money for the employee of the treatment automobile sales, but for the reason that it is money for the employee’s daily wage after the mobile phone sales, which is the basis of the ex post facto payment of the cost of transportation work.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the calculation

D. Regarding ground of appeal No. 4

Even if the amount of average wages was calculated in accordance with the principle prescribed by the Labor Standards Act and the Enforcement Decree of the Labor Standards Act, in exceptional cases where it is deemed that the amount of average wages calculated as above has been significantly less or more severe than ordinary cases when comprehensively evaluating all the circumstances, including the entire period of work, the length of a certain period in which the amount of wages has changed, the degree of changes in the amount of wages, etc., as well as the total amount of wages, etc., even though the amount of average wages was calculated for a certain period immediately before the suspension of business, the calculation of shutdown allowances based thereon is not permissible in light of the spirit of the Labor Standards Act that provides for the calculation of shutdown allowances based on the ordinary living wage of the worker, and thus, it shall be separately calculated in a reasonable and reasonable way that can reflect the ordinary living wage of the worker properly (see Supreme Court Decision 2006Da1728

In light of the special circumstances of the instant case, the lower court calculated the monthly average wage by converting the amount corresponding to the period from September 30, 2006 to September 9, 2006, which is one year retroactively from the date when the Plaintiffs received the normal wage from the sale of treatment motor vehicles, into three months retroactively from the date when the Plaintiffs received the normal wage from the sale of treatment motor vehicles. However, in cases where there were no amount received or a large amount of wage items received during the said three-month period, the lower court calculated the monthly average wage by converting the amount corresponding to the period from September 30, 2006 to September 1, 2006, which is one year retroactively from the date when the ground for calculation under the Labor Standards Act occurred, into three-month period.

In light of the above legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the calculation method of business suspension allowance

2. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

The allegation in the grounds of appeal in this part is that “if a company is naturally divided according to the boundary of a business division where there is almost no past personnel exchange, the right to refuse to succeed to the company shall not be recognized.” However, this cannot be a legitimate ground of appeal as to matters that the court below did not determine.

B. As to the grounds of appeal Nos. 2 and 4

Article 46(1) of the Labor Standards Act includes cases where a worker refuses or is unable to work against his/her will despite having the intention to provide his/her labor under an employment contract. Thus, “temporary retirement” refers to a broad concept including “temporary retirement.” Article 23(1) of the Labor Standards Act refers to an employer’s disposition prohibiting the worker from performing his/her duties for a certain period of time when it is impossible or inappropriate to allow a certain worker to perform his/her duties (see Supreme Court Decision 2007Du10440, Sept. 10, 2009). In addition, “a standby order” refers to a temporary measure that prevents a worker from performing his/her duties for preventing any occupational trouble if the worker continues to be in charge of his/her current position or duties in the future (see Supreme Court Decision 2007Du10440, Oct. 13, 2011). Thus, the employer’s obligation to issue temporary retirement allowances to the worker under Article 23(1)4 of the Labor Standards Act constitutes one’s own business suspension order.

On January 18, 2007, the court below acknowledged that the Incheon District Court rendered a provisional disposition that "the 219 workers, including the plaintiff, are in the position of workers temporarily" as the above court 2006Kahap2621, and determined that the order of this case constitutes a business suspension allowance of this case on the ground that the order of this case was already recognized as the plaintiffs' workers based on the above provisional disposition, but it is not reasonable to allow the plaintiffs to work directly in the previous direct passenger sales sector because the company was already transferred to the newly established company, or to impose such obligation on the treatment automobile sales. Thus, the standby in this case can be deemed as the actual suspension of the business of directly operated passenger sales, and the "the cause attributable to the users" under Article 46 of the Labor Standards Act refers to all grounds that the employer cannot claim that the business operator is a force majeure, and it cannot be viewed as a business suspension allowance of this case on the ground that the order of this case constitutes a business suspension allowance of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on temporary closure allowances under Article 46(1) of the Labor Standards Act, by misapprehending the rules of logic and experience and exceeding the bounds of

C. Regarding ground of appeal No. 3

The lower court determined that the amount of tax refund includes the total amount of tax refund, which serves as the basis for the calculation of the average wage, on the ground that, instead of paying part of the wages that is to be paid to an employee on the ground that tax withholding is a tax, the amount overpaid or erroneously paid is recovered as a tax by year-end settlement and then is returned to an employee.

However, we cannot accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below and the records, the court below revealed that the "total amount of wages" as the basis for calculating average wages includes the basic salary paid to the plaintiffs, and calculated all the amount before deducting the taxes subject to withholding, such as income tax and resident tax. Thus, if the amount of tax refund is calculated as the average wage including the total amount of the wages, it would result in double calculation of the amount equivalent to that of the amount.

Nevertheless, the judgment of the court below is erroneous in the misapprehension of legal principles as to the calculation of the average wage, including the amount of tax refund for the plaintiffs other than 6 Plaintiffs, 72, 10, 18, 23, 53, and 79, among the plaintiffs listed in the attached list of plaintiffs (1) and (2). Therefore, the ground of appeal pointing this out is with merit, and the ground of appeal as to the plaintiffs 72, 10, 18, 18, 23, 53, and 79, which are not included in the amount of tax refund is without merit.

D. Regarding ground of appeal No. 5

Article 179(1)10 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides for “worker’s wage” as a priority claim. Article 2(1)5 of the Labor Standards Act provides, “The wage means any money or goods that an employer pays to an employee in any name, such as wages, salary, and any other name as remuneration for work.” Although Article 46(1) of the Labor Standards Act provides that a shutdown allowance that is paid to a “where an employer suspends business due to a cause attributable to an employer,” it is closely weak with the provision of labor in that it does not provide actual work, the intention of the provision of labor and the provision of labor is weak, but in that it is paid to a worker as the object of preventing him/her from providing labor regardless of his/her will even if the employee wishes to provide labor, the right to claim shutdown allowance constitutes a public-interest claim as provided for in the Debtor Rehabilitation Act.

This part of the ground of appeal is that the right to claim a shutdown allowance is merely a rehabilitation claim, and thus, it cannot be immediately ordered to pay it to the defendant who is a custodian of the rehabilitation debtor. However, it is not accepted as it is a premise different from

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs other than plaintiffs 72, 10, 18, 23, 53, and 79 among the plaintiffs listed in the separate sheet of plaintiffs is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeals listed in the separate sheet of plaintiffs 72, 10, 18, 23, 53, and 79 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Plaintiffs (1): omitted

[Attachment 2] List of Plaintiffs (2): omitted

[Attachment 3] List of Plaintiffs (3): omitted

Justices Lee In-bok (Presiding Justice)