The interpretation of Article 38 of the Labor Standards Act in a case where the unfair dismissal worker has to deduct the so-called interim income received under employment by other employers during the dismissal from the amount of wages to be paid to the above worker.

Article 38 of the Labor Standards Act shall only apply to the above-mentioned interim income deduction with respect to the part exceeding 60 percent of the average wage out of the worker's wage claims in light of the minimum standard of living for the worker, and shall not apply to the part up to 60 percent of the average wage.

Article 538 of the Civil Act, Article 36(1) of the Labor Standards Act, Article 38 of the Labor Standards Act

December 22, 1981, 81Da626 decided Dec. 22, 198 (Gong675, 220)

Plaintiff

The lake Passenger Transport Corporation

On June 30, 1980, the defendant confirmed that dismissal against the plaintiff on June 30, 1980 is invalid.

From May 2, 1985, the Defendant paid 4,520 won per day to the Plaintiff from May 2, 1985, to the time the Defendant permitted the Plaintiff to be reinstated as the driver belonging to the Defendant.

The plaintiff's remaining claims are dismissed.

The litigation costs shall be divided into two parts, and one of them shall be borne by the defendant, and the other by the plaintiff.

Paragraph (2) may be provisionally executed.

The disposition of Paragraph 1 and the defendant shall pay to the plaintiff 10,820,775 won and 352,065 won per month from December 1, 1984 until the plaintiff is reinstated as a bus driver belonging to the defendant.

The judgment that the lawsuit costs shall be borne by the defendant and a provisional execution on the above monetary payment portion is declared.

The fact that the plaintiff worked as a bus driver of the defendant company and was dismissed by the defendant company on June 30, 1980 is no dispute between the parties.

The plaintiff alleged that the above dismissal was null and void without any justifiable reason, and the defendant company rejected the above dismissal of the defendant company. Thus, the above dismissal disposition is justifiable, asserting that the plaintiff tried to run the defendant company's labor union chief, but the non-party 1, the representative director of the defendant company, was unable to use the plaintiff's service certificate for the reason of non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2'.

However, the evidence supporting the fact that the plaintiff committed the crime as alleged by the defendant company Eul 3-5, 6, 7, 11, 12, 16 through 20, 26 through 28, 13, 21, 24, 32, 42, 40, 8 through 4-10, and 33 of Eul evidence No. 3-14, 23, 45, and 46 (each protocol of examination of witnesses), which were written by the public prosecutor as evidence, is hard to conclude that the defendant company Gap's dismissal of the defendant company was not consistent with the above evidence of the first instance court without any dispute over the above facts. However, according to the above evidence of the court below, it is hard to find that the non-party 2's testimony was invalid or that the non-party 3's testimony was not consistent with the above evidence of the court below without any reasonable grounds for misunderstanding of the evidence of the court below's 9-1, 2011.

If the above dismissal disposition is null and void, the employment relationship between the defendant company and the plaintiff shall continue to exist until now, and according to the purport of oral argument, the defendant company rejected the plaintiff's employment until the date of dismissal by asserting the validity of the above dismissal disposition. In such a case, the plaintiff's obligation under the employment relationship between the defendant company and the plaintiff cannot be fulfilled due to the rejection of receipt by the defendant company which is the creditor. Thus, pursuant to the provisions of Article 538 (1) of the Civil Act, the plaintiff may claim against the defendant company for the payment of wages in return for the plaintiff's labor until the above dismissal is returned to the original status after the above dismissal, and the wages shall be the amount paid if the defendant company had not received the above dismissal, but shall be the amount of wages for the above 6th month + the amount of wages for the above 6th month 2 through 5th 7th 4th 6th 7th 6th 7th 6th 6th 6th 6th 6th 6th 6th 6th 1 (each 6th 1st 6th 6th 6th 6th 6th 6th 6th 6th 6th 1).).

However, Defendant Company has a defense that the above income should be deducted from the amount of wages that the Defendant Company should pay to the Plaintiff, as it had been employed by the Plaintiff as an employee of another bus company after the above dismissal to the end of 10. As such, if the Plaintiff had a duty to deduct the above income from the above amount of 10th of 6th of 8th of 6th of 6th of 6th of 6th of 6th of 6th of 6th of 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 3th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 7.

Therefore, the plaintiff's claim of this case is justified within the scope of the part seeking confirmation of invalidity of the above dismissal disposition and the part seeking payment of the above amount, and the remaining claims are dismissed by improper means, and it is so decided as per Disposition by the application of Articles 89 and 92 of the Civil Procedure Act, and Article 6 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings with respect to the issuance of provisional execution.

Judges Kim Young-il (Presiding Judge)