Whether the Korean Labor Standards Act is applied to a labor contract the object of which is work in a foreign country.

With respect to an employment contract aimed at work in a foreign country, if the accident occurred during the course of employment, the income tax shall be borne by the income law, and if the employment contract was prepared in the Korean law as well as the savings under the Korean law, it shall be deemed that there was an intention that the Korean law should be applied to the civil dispute arising from such employment contract as the governing law.

Article 9 of the Conflict of Laws

Supreme Court Decision 66Da258 delivered on March 20, 1973 (Law No. 10419 delivered on March 20, 197, Decision No. 9 (1)641 delivered on March 20, 197)

Nonparty 16 others

Korea Commercial Corporation

Seoul Central District Court (70Da3433) in the first instance trial

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

The original judgment shall be revoked.

The defendant shall pay to the plaintiff 1 the amount of 693,568 won, gold 701,382 won, gold 86,608 won, gold 351,330 won to the plaintiff 3, gold 1,036,078 won to the plaintiff 5, gold 836,348 won to the plaintiff 6, gold 1,230,616 won to the plaintiff 7, gold 812,772 won to the plaintiff 8, gold 357,08 won to the plaintiff 10, gold 723,520 won to the plaintiff 10, gold 192,08 won to the plaintiff 11, gold 74,018 won to the plaintiff 12, gold 136,078 won to the plaintiff 5, gold 275,716, gold 17, 475, 17615 won to the plaintiff 67, 2716, gold 275, 1767 and 10

The judgment that all the costs of lawsuit shall be borne by the defendant in the first and second trials.

1. Details of the employment contract;

The plaintiffs, as driving water, have been engaged in the land transport business of the U.S. military cargo in the Republic of Korea, the defendant's overseas place of business, and entered into an employment contract with the defendant and engaged in the transportation business in the Republic of South Korea for the period of work listed in the attached Table (B). The plaintiffs and the defendant agreed to work hours at 60 hours a week to 60 hours a week and 260 hours a week in an employment contract, but actually agreed to work hours at 20 hours a day without any paid leave, and they worked at 20 hours a day continuously during the next day and worked at 30 hours a month during which they worked for 30 hours a month, and the plaintiffs' wages are extended to 40 hours a month more than that of the contract. The plaintiffs' wages are calculated as 30 hours a month from the first day of each month to the end of every month, and the plaintiffs' wages are calculated as 30 hours a month during which the plaintiffs' wages were paid on the 10th day of every month to the end of every month, and there is no dispute between the plaintiffs' wages of 10 hours per month.

2. Determination of the applicable law;

Since the work provided by the plaintiffs was conducted in the Republic of South and North Korea, the law of the Republic of South and North Korea shall apply to claims such as the plaintiffs' overtime allowance, and the Labor Standards Act of the Republic of Korea shall not be applied. Thus, according to the provisions of the main sentence of Article 9 of the Conflict of Laws Act, the law applicable to the establishment and validity of a juristic act shall be established by the parties' will. Thus, according to the written employment contract, such as evidence No. 1 of the Republic of Korea, if a worker was affected by an accident during his employment, it shall be dealt with in accordance with the Labor Standards Act of the Republic of Korea, and the worker shall be obliged to pay the income tax on taxes under the Income Tax Act of the Republic of Korea, and it can be acknowledged that the worker agreed to pay the savings under the laws of the Republic of Korea. Considering the circumstances in which the facts and employment contract were made in purely in Korean, civil disputes arising from a labor contract between the plaintiff and the defendant have an intention to apply the law of the Republic of South and North Korea as the law of the Republic of Korea.

3. Determination on the defense of extinctive prescription

Even if the Labor Standards Act of Korea is applied in this case, the defendant asserts that the extinctive prescription period of each claim for allowances claimed by the plaintiffs has already expired. Thus, as seen in the period of request stated in the attached Table (B), the plaintiffs claim allowances from April 1, 1968 or thereafter, as seen in the period of request stated in the attached Table (B), and since the plaintiffs' filing date of the lawsuit is obvious in the record on March 24, 1970, the extinctive prescription period of two years under Article 41 of the Labor Standards Act has not expired, there is no reason for objection

4. Determination as to the claim for various allowances

(A) Basic wages

Article 2(1) of the Labor Standards Act provides that the Plaintiffs’ rights to work at night shall not be included in the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to do not include the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to do not include the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to do not include the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which the Plaintiffs agreed to do not include the number of hours for which the Plaintiffs agreed to pay for overtime work and the number of hours for which are included.

This is because, even though there was no document on overtime work hours, night work, holiday work, etc., if the plaintiffs actually worked overtime hours, night work, or holiday work, etc., under the Labor Standards Act, the plaintiffs are entitled to receive overtime work hours, night work, or holiday work, and on the contrary, there is no claim for allowances if the plaintiffs do not actually work overtime, night work, or holiday work in the labor contract, and as long as the plaintiffs do not have any interest or disadvantage, it is difficult to set a premium rate on ordinary wages for the allowances, even if they expressed the amount immediately without setting the amount of ordinary wages for the reasons that it is not the basic wages in addition to the basic wages in the wage schedule.

Therefore, the plaintiffs' assertion that the basic wage of the plaintiffs is the total monthly wage as specified in the attached Table (D) is groundless.

(B) Ordinary wages per hour;

According to Article 24 subparagraph 4 of the Enforcement Decree of the Labor Standards Act (Article 31 subparagraph 4 of the current Enforcement Decree of the Labor Standards Act, part of the period of the labor contract between the plaintiff 5, 7 and 11 is in force; hereinafter the same shall apply), with respect to the wages determined as monthly wage, the amount calculated by dividing that amount by the number of contractual work hours per month is 260 hours per month between the plaintiff 1 and the defendant, and the amount calculated by dividing that amount by the number of contractual work hours per month between the plaintiff 260 hours per month and the defendant is calculated by the number of contractual work hours per month. (Article 31 subparagraph 4 of the current Enforcement Decree of the Labor Standards Act, part of the period of the labor contract between the plaintiff 5, 7 and 11 is in force; hereinafter the same shall apply). (Article 24 subparagraph 4 of the Enforcement Decree of the Labor Standards Act (Article 31 subparagraph 4 of the current Enforcement Decree of the Labor Standards Act).

(C) Extended pay

The facts that the plaintiffs worked in excess of 40 hours a month more than 260 hours per month are the same as mentioned above. The defendant is obligated to pay the 40 hours per month of overtime by adding 50/100 or more of the ordinary wages under Article 46 of the Labor Standards Act, so the defendant is obligated to pay the plaintiffs 40 hours per month of overtime work as ordinary wages and pay at least 50/100 of the ordinary wages as additional dues. Thus, it is calculated on a monthly basis by the plaintiff, as shown in the attached Table (h). (The daily ordinary wages x 40 hours per hour of extension x 150/100).

(D) Night work allowances

The facts that the plaintiffs conducted night work 97 hours and 30 minutes per month are included in the hours that the plaintiffs worked 20 hours per day (10 hours per day per day) as seen earlier, and since the basic monthly wages were already paid to the plaintiffs, the defendant is required to pay 50/100 of the ordinary wages as additional dues for night work allowances as claimed by the plaintiffs. Thus, this is calculated on a monthly basis for each plaintiff, and it is same as the amount stated in the column for item (i) in the attached Table (i). (The ordinary wages per hour x night work hours x 97.5 hours per day x 50/100).

(e) Monthly salary pay and annual salary pay;

Article 47. Article 48 of the Labor Standards Act provides that an employer shall grant 8-day paid leave for workers who work on a monthly basis and for 1 year. (The plaintiffs claimed weekly paid leave allowance at least once per week under Article 45 of the Labor Standards Act, but withdrawn) There is no dispute between the parties that the plaintiffs have continued to work without using paid leave or annual paid leave. As the plaintiffs are obligated to pay 50/100 or more of their ordinary wages for holiday work under Article 46 of the Labor Standards Act, the defendant is obligated to pay 150/10 or more of their ordinary wages for 10-day paid leave, but the defendant is not obligated to pay 40/10 or more of their ordinary wages for 10-day paid leave (Article 33(1) of the Enforcement Decree of the Labor Standards Act of the Labor Standards Act of 46 of the Labor Standards Act of 10-day paid leave and 46-day paid leave under Article 48 of the Labor Standards Act of the same Enforcement Decree of the Labor Standards Act of the Labor Standards Act.

5. Conclusion

Therefore, the legal system allowances that the defendant should pay to the plaintiffs are the same as the monthly leave allowances as the monthly leave allowances in the column (j) written in the column (k) as the annual leave allowances in the column (l) written in the column (k), and the plaintiffs were paid the monthly salary in the column (e) of the attached Table by combining the basic wages in the column (e) of the attached Table from the defendant. In conclusion, the plaintiffs will receive the money in the item (f) of the attached Table as the allowance name.

Therefore, the amount of allowances as stated in the attached Table (f) that the plaintiffs actually received shall exceed the amount stated in the attached Table (l), which is the sum of the allowances that the plaintiffs are entitled to claim under the Labor Standards Act. Ultimately, the plaintiffs are paid in excess of the difference in the allowances as stated in the attached Table (m) (i). Therefore, even if the plaintiffs are included in the calculation of the amount for 40 hours per hour, which is the weekly holiday work allowance that the plaintiffs may claim, x the amount of 40 hours per weekly holiday work hours, it is apparent that the plaintiffs' claim under the premise that the plaintiffs' claim for allowances exists is reasonable. Accordingly, this claim under the premise that the plaintiffs' claim for allowances is reasonable, and the judgment of the court that agrees with this conclusion is just,

Judges Noh Jeong-hee (Presiding Judge)