[1] The case where the wage determined by evaluating the worker's work performance falls under ordinary wages as a fixed wage

[2] In a case where a business performance evaluation performance bonus is continuously and regularly paid, and a payment condition is determined and thus an employer is obligated to pay, whether it is included in the wage constituting the basis for calculating the average wage (affirmative), and whether it is not deemed that it is not paid as the remuneration for work solely on the ground that the payment or payment rate may vary according to the business performance evaluation result (negative)

[3] Where the specific and direct judgment on the matters alleged by the parties is not indicated in the judgment, but in light of the overall purport of the reasoning of the judgment, or where it is evident that the assertion will be rejected although it did not make a decision, whether there exists an omission of judgment (negative)

[1] Article 2(1)5 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [2] Article 2(1)5 and 6 of the Labor Standards Act, Article 48(1) and (10) of the Act on the Management of Public Institutions, Article 27(4) of the Enforcement Decree of the Act on the Management of Public Institutions / [3] Articles 208 and 423 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 (Gong2014Sang, 236) / [2] Supreme Court Decision 2001Da53950 Decided October 23, 201 (Gong2001Ha, 2529) Supreme Court Decision 2015Du36157 Decided October 12, 2018 (Gong2018Ha, 2117), Supreme Court Decision 2018Da231536 Decided December 13, 2018 (Gong2019Sang, 276) / [3] Supreme Court Decision 2009Da88631 Decided April 29, 2010

See Attached List of Plaintiffs (Plaintiff 1 and 290 others) (Attorney Kim Young-deok et al., Counsel for the plaintiff-appellant)

The Korea Housing and Urban Guarantee Corporation (Law Firm Sejong, Attorneys Choi Young-seok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2054828 decided June 29, 2016

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the misapprehension of legal principles as to ordinary wages and incomplete deliberation

A. In order for a certain wage to be included in ordinary wages, it must be paid periodically, uniformly, and fixed. Although fixedness is generally denied for a worker’s work performance assessed during a period eligible for payment, if the payment of a certain amount is determined at the minimum as to work performance, even if the worker’s work performance is rated lower than that of paying a certain amount, the minimum wage is a fixed wage. In addition, in cases where a worker’s payment of a certain amount is determined according to the worker’s work performance during the pertinent year, the payment of a certain amount or amount of payment is determined in the pertinent year, and thus, the wage constitutes a fixed wage in the pertinent year (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013, etc.).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Defendant has already paid performance-based incentives (in addition to basic pay, additional pay, and performance-based management evaluation pay) to employees in addition to basic pay, etc., and has modified the wage system and paid performance-based incentives (performance-based incentives and performance-based management evaluation pay) by introducing the annual salary system around 2010.

2) Of performance-based incentives, the Defendant’s performance-based bonus consists of (1) self-performance bonus that pays 50% of the monthly basic salary in the pertinent year for the pertinent year for which the performance rating for the previous year is assessed and paid; (2) management evaluation conversion bonus that pays 250% of the monthly basic salary in the pertinent year for the pertinent year for which the performance rating for the previous year was assessed and paid; (3) abolition of allowances that pays 80% of the monthly basic salary in the pertinent year for the pertinent year for which the performance rating for the executives are assessed and paid; (4) adjustment allowances that pays 40% of the monthly basic salary in the previous year on the payment date of the pertinent year for the pertinent year for which the performance rating for the previous year was assessed and paid; and (5) adjustment allowances that are paid to executive employees by evaluating the performance rating for the previous year on the payment date

3) Article 30 of the Defendant’s Remuneration Regulations provides that “The president may pay performance-added salaries according to the internal evaluation results, and the standards for payment shall be governed by the president’s separate rules.” Article 22 of the annual salary rules provides that “The president shall pay performance-added salaries according to the interim evaluation results by department, and the standards for payment, etc. shall be determined by the standing director’s association.”

4) The Defendant has paid performance added pay in accordance with the Government’s Guidelines for Budget Execution of Public Corporations and Quasi-Governmental Institutions. The Government has set the standards for the payment of performance added pay every year.

5) The Defendant’s Standing Council has resolved on the subject of, and standards for, the performance-based bonus to be paid in the payment year according to the previous year’s work performance for employees who worked in January or February of the year from 2011 to 2015. The payment rate of performance-based bonus, the lowest class of class D, has been at least 66%.

C. Examining the above facts in light of the legal principles as seen earlier, performance added pay, which the Defendant paid to the Plaintiffs, has the duty to pay in the remuneration regulations and the annual salary regulations, and has been continuously and regularly paid. According to the Plaintiffs’ work performance in the pertinent year, the payment was determined and the amount was determined according to the resolution of the standing directors’ meeting in accordance with the Plaintiffs’ previous year, and the minimum payment was determined as to the payment of a certain amount even if the Plaintiffs received the lowest level of work performance. Moreover, there is no special circumstance to deem that the Defendant’s performance added pay in the previous year is only late when the payment was made.

Therefore, the performance added pay should be deemed to be included in the ordinary wage as a fixed wage in the pertinent year. In so doing, the lower court did not err by misapprehending the legal doctrine regarding ordinary wage, failing to exhaust all necessary deliberations, or contrary to the principle of free evaluation of evidence against logical and empirical rules.

2. As to the misapprehension of legal principles as to average wages and incomplete deliberation

A. Based on the Act on the Management of Public Institutions (hereinafter “Public Institutions Operation Act”), public corporations or quasi-governmental institutions pay piece rates (hereinafter “management evaluation performance rates”) to employees according to the results of management performance evaluation conducted by the Minister of Strategy and Finance. The key issue is whether the management evaluation performance rates constitute the wages that serve as the basis for the calculation of average wages is whether they constitute the wage.

Wages, which are the basis for calculating average wages, are money and valuables paid by an employer to an employee as remuneration for work, which are paid continuously and regularly to an employee and whose payment obligation is crossed out by collective agreements, rules of employment, wage rules, employment contracts, labor contracts, labor practices, etc. (see Supreme Court Decision 2001Da53950, Oct. 23, 2001, etc.).

If management evaluation performance bonus is continuously and regularly paid, and if an employer is obligated to pay due to the determination of the payment terms and conditions, it shall be deemed to be included in the wage which serves as a basis for calculating the average wage, given that it has the nature of wage paid as compensation for labor. Even if the payment terms and conditions may vary according to the results of management performance evaluation, it cannot be deemed that the management evaluation performance bonus and payment are not paid as compensation for labor (see Supreme Court Decision 2015Du36157, Oct. 12, 2018).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

1) The Defendant has been paying the management evaluation performance rating from before 2010. The management evaluation performance rating has been paid by 500% until 2011 of the basic salary or basic salary every year in the year in which it was paid by evaluating workers’ work performance during the previous year.

2) Article 30-3 of the Defendant’s remuneration regulations provides that “The president shall pay a management evaluation performance rating according to the results of the management performance evaluation, and the standards for such differential payment shall be as determined separately by the president.” Article 23 of the annual salary rules provides that “Management performance rating shall be paid differently according to the grades calculated under Article 14 of the General Service Rating Regulations, and the standards for differential payment shall be determined by the standing committee.”

3) Article 48(1) of the Act on the Management of Public Institutions provides that the Minister of Strategy and Finance shall evaluate the management performance of public corporations and quasi-governmental institutions. The Government has prepared guidelines for the budget execution of public corporations and quasi-governmental institutions to provide standards for the payment of management evaluation performance ratings, the number of differential grades, the number of personnel by grade, the rate of payment of performance rates applied to the defendant according to the results of management performance evaluation under the

4) As above, the Defendant calculated the remaining performance-based bonus according to the remuneration regulations, annual salary rules, and the standards and calculation methods set by the standing committee, based on the performance-based rate determined by the government annually, and paid it to its employees.

C. Examining these facts in light of the aforementioned legal principles, the instant management evaluation performance rating paid by the Defendant to the Plaintiffs from around 2011 to around 2015 ought to be deemed to have the nature of wages paid as compensation for work, since the obligation to pay was crossed out to the employer as the subject of payment and payment terms have been determined. In the same purport, the lower court’s judgment that the instant remaining performance performance performance bonus is included in the total amount of wages, which serves as the basis for calculating average wages, is justifiable, and contrary to what is alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on average wages or failing

3. As to the non-founded grounds of the statute of limitations defense

Although the court's decision does not state a specific and direct decision on the matters alleged by the parties, if it can be known that the assertion was cited or rejected in light of the overall purport of the reasons for the judgment, it cannot be deemed an omission of judgment. Even if the court's decision was not actually made, if it is obvious that such assertion was rejected, it cannot be deemed that there was an omission of judgment due to the lack of influence on the conclusion of the judgment (see Supreme Court Decision 2009Da8631, Apr. 29, 2010

Although the reasoning of the lower judgment does not indicate the Defendant’s specific and direct judgment regarding the Defendant’s defense for the completion of extinctive prescription is identical to the Defendant’s assertion, in light of the purport of the lower judgment, it can be easily known that the lower court rejected the Defendant’s assertion, and as such, the interruption of extinctive prescription is limited to the claim for retirement benefits unpaid, it does not appear that part of the Defendant’s claim for retirement benefits

Therefore, contrary to the allegations in the grounds of appeal, the lower judgment did not err by failing to state the grounds for the judgment or by failing to exhaust all necessary deliberations.

4. As to the misapprehension of legal principles as to Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings

In light of the relevant legal principles and records, in the case of the plaintiffs whose "0" is indicated in the "0" column for delay damages in the cited amount table in the attached list No. 2 of the judgment below, the judgment of the court below ordering the payment of delay damages as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, by misapprehending the legal principles as alleged in the grounds of appeal, which affected the conclusion of the judgment, shall not be erroneous in the judgment of the court below, which ordered the payment of delay damages as stated in the "1" column in the attached list No. 3 of the attached Table

5. Conclusion

Therefore, the Defendant’s appeal is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Lee Ki-taik (Presiding Justice)