See Attached List of Plaintiffs (Law Firm Han-gu, Attorneys Kim Sung-hee, Counsel for the plaintiff-appellant)

Manager of Daewoo Motor Sales Co., Ltd. (Law Firm Shin & Yang, Attorney Ba-tae, Counsel for the plaintiff-appellant)

November 30, 2011

Seoul Central District Court Decision 2010Gahap17869 Decided November 9, 2010

1. Of the judgment of the court of first instance, the part against the plaintiffs in attached Form 1 corresponding to the money ordered to be paid below shall be revoked.

The defendant shall pay to the plaintiffs in attached Table 1 the amount of money with 6% per annum from March 9, 2010 to December 23, 2011, and 20% per annum from the next day to the date of full payment.

2. All remaining appeals by the plaintiffs in the attached Table 1 and the plaintiffs in the attached Table 2 are dismissed.

3. Of the total litigation costs arising between the plaintiffs and the defendant in attached Table 1 list, 2/3 of the above plaintiffs shall be borne by the defendant, and the remainder by the defendant, and the appeal costs against the defendant in attached Table 2 shall be borne by the above plaintiffs.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

Of the judgment of the court of first instance, the part of the plaintiffs shall be revoked. The defendant shall pay to the plaintiffs 20% interest per annum with respect to each of the above amounts and each of the above amounts, from the day after the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. The Defendant Daewoo Automobile Sales Co., Ltd. (the Defendant taken over the instant lawsuit during the course of the trial as seen below; hereinafter “Treatment Automobile Sales”) in the first instance trial is the company running the automobile sales business. The Daewoo Automobile Sales was composed of the automobile sales sector, the construction sector, and the head office management sector prior to the company division as seen below. The automobile sales sector was comprised of the directly operated passenger sales sector, the agency sales sector, the truck sales sector, the bus sales sector, the bus sales sector, and the imported tea sales sector. However, the Plaintiffs had been performing the business of directly operated passenger sales.

B. The Daewoo Motor Vehicle Sales decided to divide the company division into the direct passenger sales sector with the accumulation of personnel in the direct passenger sales sector from among the automobile sales sector. On September 29, 2006, by opening a temporary general meeting of shareholders, the direct passenger sales sector with the lowest profits at the time and the agency sales sector with the highest profits (hereinafter “instant corporate division”) and establish a “dib B&P direct sales company” (hereinafter “new company”). Accordingly, the treatment Motor Vehicle Sales was established as a new company on October 1, 2006 and completed the company division registration on October 11, 2006.

C. On September 28, 2006, the representative director of the Daewoo Motor Sales and the newly established company confirmed the following by issuing a certificate to the Daewoo Motor Sales Trade Union organized by employees belonging to the Daewoo Motor Sales Co., Ltd. (hereinafter “the instant trade union”).

- As a result of the corporate division of this case, the employees who work in the business division subject to division as of the date of division shall be succeeded to the newly established company.

- New companies shall succeed to all employment relationships and working conditions of workers leaving their jobs from the sale of treatment motor vehicles as at present.

·The Daewoo Motor Vehicle Sales and New Establishment Company affirms that any agreement made pursuant to the collective agreement and collective bargaining with the instant trade union is also effective for the newly incorporated company.

D. On September 29, 2006, the Daewoo Motor Sales publicly announced on the integrated computer network that “an employee who intends to refuse to change his/her position to a newly incorporated company and remain in the sale of treatment Motor Vehicles shall file an objection from October 2, 2006 to October 10, 2006.” The above public notice and public notice contain the following: “The consent is not substantial meaning, and if a written objection is submitted, a standby order and layoff should be implemented.”

E. The Daewoo Motor Vehicle Sales had an employee of the management department, such as the personnel department, receive a written objection submitted on the Internet or directly. If the employees belonging to the business sector subject to division could actually file an objection by October 10, 200, it is as listed in the following table (the sale of treatment motor vehicles was announced on October 9, 2006 and October 10 of the same month as the date of suspension of work as to only the business employees included in the business sector subject to division of the company of this case). In light of this list, the employees may file an objection on the working day, including the day of notification, on September 29, 2006 and October 2 of the same year, on which the date when the employees may file an objection on the working day, and thus, in order to file an objection on another day other than this day, they went to the company on the day of partial holidays or holidays, and paid the application.

A temporary leave of absence, 10/29/30 10/30/4 10/4 10/5 10/6 10/7 8 (at the time of receipt of a written objection) of the No. 10/6/7 10/7/8 of the No. 10/29 on the No. 10/29/30 of the No. 10/300 of the No. 10/6 of the No. 10/6 of the No. 1000 on the No. 1, 199/9 of the No. 10/10 of the No. 1, 1000 on the No. 1,000

F. The instant trade union, upon delegation of the power of representation from all the members and submission of a written consent from the former member, sent a notice of the set period of time for the sale of the medical automobile to the medical automobile seller on October 10, 2006 and on October 11, 2006, that all the members refused to transfer. However, the medical automobile sale presumed that the Plaintiffs did not submit a written objection, and on October 10, 2006, 525, including the employees engaged in direct passenger sales as of October 1, 2006. The new company issued a retirement recruitment order retroactively to the above workers on October 11, 2006, and the new company transferred the employment order to the direct operation of the medical automobile sales sector.

G. Meanwhile, on October 12, 2006, in addition to the notice of the instant trade union, the Plaintiffs sent an individual written consent on October 12, 2006, from which the regular service began. However, on October 17, 2006, the Daewoo Motor Sales returned the written consent to the Plaintiffs en bloc on the ground that “The written consent was not submitted within the period for filing an objection, and the procedure was already completed to the newly incorporated company.”

H. On December 1, 2006, 219 workers, including the plaintiffs, filed an application for provisional injunction against the Incheon District Court on December 1, 2006 to verify their status as workers who seek their temporary status as employees (No. 2006Kahap2621). The above court accepted the above application on January 18, 2007 and rendered a provisional injunction that “the said 219 employees temporarily determine that they have the status as employees.”

I. On January 31, 2007, 2007, the business operator and the business operator of Daewoo Motor was issued a standby order as of January 23, 2007 with regard to 214 persons including the plaintiffs (hereinafter "the standby order in this case"). The contents of the order were to order the plaintiffs to "the probationary order (13 places among the 19 places at the personnel department and the agency's headquarters)", and the sales of Daewoo Motor was corrected on February 5, 2007 by correcting the letter of personnel order in this case, "the personnel order in accordance with the Incheon District Court Order 2006Kahap2621," and "the above personnel order can be revoked or changed as a result of the lawsuit on the merits concerned." The standby order in this case continued until October 30, 2008.

E. After that, workers, including the plaintiffs, filed an application for remedy with the Incheon Regional Labor Relations Commission and the National Labor Relations Commission, but all were dismissed, and the Seoul Administrative Court filed an action for the issuance of unfair atmosphere and the revocation of review on remedy for unfair labor practices (hereinafter “related action”). However, the claim was dismissed on the ground that the instant standby order cannot be deemed unfair or unfair labor practices. Accordingly, the above workers appealed from Seoul High Court 2008Nu24554, and on October 30, 2008, while the appellate court was continuing to file an appeal on November 1, 2008, the treatment order was not received from the Plaintiff (the Plaintiff 1 did not receive the above treatment order from October 28, 2008, since it did not receive the treatment order from the Plaintiff 1).

(k) Employees in the business of the sale of treatment-based vehicles are CM (the fixed wage of about 70% and the piece rate of about 30%) to which the payment system based on the pay system applies, and there are SR (the fixed wage of about 30% and about 70% piece rates; hereinafter referred to as the "SR") to which the payment system based on the performance-based pay system applies. The wage system is composed of basic pay in the case of CM, cashing, sales promotion allowances, sales promotion allowances, and other allowances (e.g., overtime, overtime, sales commission x base rate), incentives x base amount per automobile x base amount x 30%, transportation expenses, and other performance-based bonuses x 30%; hereinafter referred to as the "SR"), and their wage system is composed of basic pay in the case of CM, cashing, sales promotion allowances, and other allowances (e.g., family allowances, and continuous service allowances).

(l) On August 10, 201, when the trial was in progress, the treatment automobile sales was decided by the Seoul Central District Court to commence rehabilitation proceedings (201 Gohap105), Nonparty 1 was appointed as a custodian, and on December 9, 2011, the above court was decided to authorize rehabilitation proceedings. Meanwhile, on the other hand, the Defendant, who was appointed as a custodian upon the decision to commence rehabilitation proceedings, taken over the instant lawsuit on October 26, 201, which became the treatment automobile sales company.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, evidence 163 to 165, Eul evidence 1 to 7 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

A. In the meantime, the instant standby order is null and void as it is not justifiable, and the Defendant is obligated to pay the Plaintiffs the difference calculated by deducting the amount of wages actually received by the Plaintiffs from the amount of wages during the period of the instant standby order, which would have been received by the Plaintiffs ( even if the instant standby order is valid, this constitutes the order of assignment under the personnel regulations of the Daewoo Motor Sales, and thus, it is also obligated to pay the amount of wages that the Plaintiffs would normally receive during the said period).

B. Preliminaryly, if the instant standby order is not invalidated, it constitutes a substantial suspension of business, and the Defendant is obligated to pay the Plaintiffs the difference calculated by subtracting the actual amount of wages paid to the Plaintiffs during that period from the temporary layoff benefits equivalent to 70% of the average wage.

3. Determination

A. Judgment on the Plaintiffs’ primary argument: Whether the instant standby order is justifiable

(1) In the case of corporate division, the remaining company's refusal to succeed to employment as a newly established company, and keeping a worker who is in a labor relationship with the surviving company in the form of a standby order and granting wages less than normal cases to the worker without having the worker work is null and void as a disadvantageous disposition against the worker, unless the "justifiable cause" under Article 23(1) of the Labor Standards Act is acknowledged. Thus, the surviving company is obligated to pay wages that the worker would have received in return for providing labor if there was no standby order to the worker.

(2) The following circumstances acknowledged by the above facts and evidence revealed. ① Treatment Motor Vehicle sales resulted in corporate division for the main reason that a large number of persons belonging to the Plaintiffs were accumulated for a long period of time, and the Plaintiffs’ business facilities of the direct passenger sales sector were transferred to a newly incorporated company due to the above provisional disposition but it was impossible or unreasonable to reinstate the Plaintiffs to the previous office before the corporate division. Furthermore, Treatment Motor Vehicle sales could not lose the Plaintiffs’ status as workers of treatment Motor Vehicle sales in accordance with the above provisional disposition, because it was impossible to maintain the Plaintiffs’ remaining position after the above provisional disposition was issued for a long period of time, and it was hard to find that there was no special circumstance that the Plaintiffs’ remaining position in the business sector, including the Plaintiffs’ temporary and temporary reinstatement, could not be seen that there was no need to maintain the Plaintiffs’ remaining position in the business sector, and in light of the aforementioned circumstances, it was difficult to find that the Plaintiffs’ remaining employees of the business sector, who were not directly engaged in the business sector, for the reason that there was no change of personnel status, as well as that there was no special reason to deem the Plaintiffs’ remaining employees of treatment.

In full view of the above circumstances, the instant standby order against the plaintiffs in the sale of Daewoo Motor is effective on the ground of justifiable grounds. Therefore, there is no reason to believe that the instant standby order is invalid among the plaintiffs' primary arguments.

(3) On the other hand, according to the purport of Gap evidence No. 4 and the entire arguments, the provisions of the Personnel Management Regulations (2002) concerning the daedae-dae-dae are as follows.

5.16. Personnel atmospheres;

In case where an employee falls under any of the following subparagraphs, he may order the staff to take personnel control:

5.16.4.the person who has been recognized as a chief executive officer in terms of business administration;

5.17. Treatment of airmen;

The personnel atmosphere shall be classified into “the atmosphere” and “the personnel atmosphere”, and each processing criteria shall be as follows:

The progress of personnel retirement in the atmosphere after the completion of the self-employed atmosphere of the waiting place for two months of the waiting period, which has not been paid normally as bonus only for the normal payment of the standby salary for the assigned position included in the main text;

However, it is reasonable to view that the personnel regulations on the standby order for the sale of treating Motor Vehicles are premised on the situation in which workers retire through the procedure, such as the atmosphere of assignment and personnel atmosphere, as it is recognized as a task force in accordance with the normal decision-making of the sale of treatment Motor Vehicles. As seen earlier, although treatment Motor Vehicle Sales attempted to succeed to employment as a newly incorporated company upon division of the company, it is difficult to deem that the above regulations apply even in cases where treatment Motor Vehicle Sales is recognized as a non-voluntary and temporary worker status in accordance with the above provisional disposition decision of the court which temporarily determines the status of workers but it is impossible to assign a position for the pertinent worker for a period in which it is inevitable to determine the deadline due to business necessity (the above personnel regulations provide that the salary and bonus shall be paid normally for one month, and in principle, it is more so in light of the fact that in principle, the position order should be paid by converting into personnel order after the completion of atmosphere, thereby maintaining a considerable difference in the level of wages.

Therefore, it is reasonable to view that the instant standby order against the plaintiffs in the sale of the Kugu Motor is a provisional and exceptional measure under the good faith principle in light of the circumstances of the instant standby order, etc., and therefore, even if the plaintiffs constitute a member of the personnel management division under the above personnel regulations, the provisions on the treatment of the person waiting for the personnel management do not apply to the plaintiffs. Therefore, there is no reason to believe that the part of the plaintiffs' primary assertion that the above personnel regulations are applied to the plaintiffs.

B. The plaintiffs' preliminary assertion: Whether to pay temporary layoff benefits

(1) Although it was decided upon the above provisional disposition that the plaintiffs were to recognize the status of workers of the Daewoo Motor Sales based on the above provisional disposition, since the part of the business directly operated by the company was already transferred to the newly incorporated company, it is not reasonable to have the plaintiffs work in the previous part, that is, the direct passenger sales part, or impose such duties on the Daewoo Motor Sales, rather than to impose such duties. Therefore, the instant standby Order can be deemed as suspending the direct passenger sales part.

(2) Article 46 of the Labor Standards Act provides that an employer shall pay the relevant employee allowances of not less than 70 percent of average wages during the period of suspension of business, and the employer’s cause attributable to the employer refers to all the reasons why the employer cannot assert that the employee is a force majeure as an operator of the company, in view of the provisions of Article 538(1) of the Civil Act. However, even though the company was divided as part of the resolution for the part of direct passenger sales accumulated by the enemy, it is difficult to deem that the act of issuing the standby order in this case was a force majeure for the Plaintiffs who refused to succeed to employment due to business management (the treatment automobile sales can be dismissed by meeting the requirements for layoff) and there is no other evidence to acknowledge that there is any other circumstance corresponding to force majeure, and therefore, the Defendant is obligated to pay at least the amount equivalent to the shutdown allowances to the Plaintiffs during the period of suspension of business due to the instant standby order.

(3) Meanwhile, temporary disability compensation benefits under the Labor Standards Act shall be at least 70% of average wages, and average wages shall be the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the date on which the cause for calculating the amount occurred by the total number of days during that three-month period (Article 2(1)6 of the Labor Standards Act). As such, the average wages of the Plaintiffs shall be based on the wages received from the relevant worker as remuneration for the work provided by the Plaintiffs for the three-month period prior to the date of calculating the standby payment, which is the ground for calculating the amount. However, the three-month period prior to the date of issuing the standby payment in this case is the actual period of dismissal by the Plaintiffs, and thus, the amount received by the Plaintiffs during that three-month period cannot be calculated as remuneration automobile sales. This reason does not fall under cases where the average wages cannot be calculated pursuant to Articles 4, 2, and 3 of the Enforcement Decree of the Labor Standards Act (Article 4 of the above Enforcement Decree requires the calculation of average wages as stipulated in Article 2(1).

Therefore, considering the special circumstances of this case, the calculation period of average wages for the calculation of temporary layoff benefits shall be based on the wages received by the plaintiffs from the sale of treatment automobile for three months retroactively from September 30, 2006, which is the final point of time when the plaintiffs received normal wages from the sale of treatment automobile, and the amount received from the sale of treatment automobile for three months retroactively from September 30, 2006, which is the point of time before the date when the plaintiffs received the normal wages from the sale of treatment automobile. However, in cases where there are no money received or a large amount of wages, the above three-month period shall be calculated by converting the amount equivalent to one-year period from September 30, 206, retroactively from September 30, 2006 to September 206, not the average wage per one day under the convenience of calculation, into the average wage per three months.

(4) Meanwhile, the defendant asserts that performance rates (in the case of CM, sales commission, capacity rating, etc., in the case of SR), tax refund, monthly allowance, scholarship, transportation expense (in the case of payment by 10,000 won per departure date) among the detailed items of wages claimed by the plaintiffs, and communication expenses, etc. do not constitute average wages under the Labor Standards Act (the defendant explicitly stated the above items, but all of the plaintiffs' claims were denied, and the defendant and the attorney of the court of this case are the same. The status of the plaintiffs and the status of the plaintiffs in the case of the above 2010Na31404 are similar, as well as their legal representatives are the same, the grounds for the claim in this case and the grounds for the claim in the case of 2010Na31404 are similar, and in light of the purport of the oral argument in this case as a whole, it is reasonable to deem the defendant to have asserted the above items in this case as a whole).

(A) First of all, according to the facts of the recognition of performance rate, tax refund, and the evidence revealed earlier, ① performance rate is the price for the sale of automobiles, and the sale of automobiles is the Plaintiffs’ wages. Thus, even if it was impossible for the Plaintiffs to sell automobiles, it is not possible for them to receive performance rate, it is included in the average wage of temporary disability compensation benefits as a matter of course due to special circumstances, such as suspension of business, etc., due to the impossibility of the Plaintiffs to sell automobiles, and thus, it is included in the average wage of temporary disability compensation benefits calculation standards. ② Tax refund, instead of paying part of the wages to be paid to the employees on the ground that they are tax withholding, is paid by the State or a local government as tax withholding, and thus, it is reasonable to deem that the Defendant’s assertion on this part

(B) Next, according to the above evidence and the purport of the whole pleadings with respect to the monthly allowance, it was concluded in 2005 to pay the monthly salary from January 1, 2006 to the labor union of this case as a fixed annual leave system on January 12, 2006, and the previous “150% of the ordinary wage is replaced by a fixed annual leave system,” excluding the fixed annual leave system, and the monthly salary from the monthly leave which occurred until December 2005 until December 2006. The above agreement was entered into force from January 1, 2006, and the Defendant’s allegation that the monthly salary from the date of this case’s monthly salary payment cannot be seen as being paid to the Plaintiffs during the 205th anniversary of the date of this case’s monthly leave payment. Accordingly, the Defendant’s allegation that the monthly salary payment from this case’s monthly salary payment can not be considered as being paid to the Plaintiffs during the 205th anniversary of this case’s monthly leave payment.

(C) Furthermore, in full view of the evidence and the purport of the entire argument as to whether the scholarship is included in the average wage, the Daewoo Motor Vehicle Sales shall be paid to the employees of kindergartens, middle and high schools (or universities) through a collective agreement with the trade union at a certain rate or by means of the number of their children, and the contract to pay the scholarship upon the submission of the receipt is actually made to the employees including the Plaintiffs, and the contract to pay the scholarship has been made to the relevant Plaintiffs. According to the above facts, it can be recognized that the scholarship payment is paid to the relevant Plaintiffs even during the period of the standby Order. According to the above facts, the scholarship payment is not a uniform payment to the pre-sale workers, but a payment is made on the premise that the submission of receipt is submitted to the pre-sale workers, and it is not made if the children in the kindergarten enter an elementary school or graduate from a middle and high school (or a university) or lose their status for any reason, and thus, this part of the defendant's assertion is without merit in this part of the Labor Standards Act.

(D) Lastly, as to the transportation expenses (which is the amount paid in 10,000 won on the date of actual attendance) and the communication expenses, the plaintiffs are engaged in business using personal phones, etc. without receiving a separate cell phone from the employee's individual for the monthly average wage calculation period, and the plaintiffs are paid 50,000 won per month for the transportation expenses from the treatment automobile sales, and 10,000 won for each actual attendance date, or there is no dispute between the parties, or according to the evidence of the above, the above transportation expenses are included in the salary list, and the transportation expenses are not changed according to the actual work days or the actual work performance results. Unlike the transportation expenses I, the above transportation expenses are included in the salary list, and the treatment automobile sales are made up after the fact, and the transportation expenses are made out by the employee's mobile phone with the employee's personal mobile phone in lieu of the separate payment to the employee's mobile phone sales expenses, and the plaintiffs's assertion about the transportation expenses cannot be viewed as compensation for actual expenses.

(5) In applying the above criteria, the monthly average wage of the plaintiffs is equal to the amount indicated in the "monthly Average Wage" column in the attached Tables 1 and 2. The wages actually received by the plaintiffs from the sale of treatment cars during the waiting period of this case (21 months) are equal to the amount listed in the "former Wage" column in attached Tables 1 and 2. The temporary disability compensation benefits to be paid by the plaintiffs from the sale of treatment cars during the waiting period of this case are the same as the amount listed in the "Temporary Disability Compensation Benefits" column in attached Tables 1 and 2. Based on the above calculation result, the amount of temporary disability compensation benefits that the plaintiffs are entitled to receive during the waiting period of this case, calculated based on the above calculation result, from the amount of temporary disability compensation benefits that the above plaintiffs are deducted the wages actually received from the sale of treatment cars, the amount listed in the "average Wage" column in attached Tables 1 and 2 shall be equal to the amount stated in the same list if the remaining amount is calculated after deducting the wages actually received by the above plaintiffs from the sale of treatment cars during the waiting period of this case.

C. Sub-decision

Therefore, the defendant is obligated to pay damages for delay at each rate of 20% per annum under the Commercial Act from March 9, 2010 to December 23, 201, which is the day following the day of service of a copy of the complaint of this case, to the plaintiffs in the separate sheet No. 1 with respect to each of the above amounts as stated in the separate sheet No. 1 attached hereto, as requested by the above plaintiffs, to the defendant from March 9, 2010 to the day of service of a copy of the complaint of this case.

4. Conclusion

Therefore, the claim of the plaintiffs in the attached list 1 shall be accepted within the above scope of recognition, and all of the claims of the plaintiffs in the attached list 1 and the claims of the plaintiffs in the attached list 2 shall be dismissed due to the lack of reasons. Since the part against the plaintiffs in the attached list 1 of the judgment of the court of first instance corresponding to the above recognized money is unfair, it shall be revoked and it shall be ordered to pay the above recognized money to the plaintiffs in the attached list 1, and the remaining appeal of the plaintiffs in the attached list 1 and the appeal of the plaintiffs in the attached list 2 shall be dismissed as it is without reason. It is so decided as per Disposition

[Attachment]

Judges Kim Yong-maid (Presiding Judge)