2014Da234971 Wages

1. A;

2. B

C

Changwon District Court Decision 2014Na30494 Decided November 27, 2014

September 10, 2015

Of the part against the plaintiff A, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Changwon District Court Panel Division.

Plaintiff B’s appeal and Plaintiff A’s remaining appeals are dismissed, respectively.

The costs of appeal between the plaintiff B and the defendant are assessed against the plaintiff B.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Comprehensively taking account of the adopted evidence, the lower court determined that: (a) Plaintiff A worked at the instant private teaching institute for five and six months from April 11, 2007 to October 10, 2012; (b) allowances not paid to Plaintiff A for the class of high school from September 11, 2012 to October 10, 2012 were paid 3.45 million won in total; (c) Plaintiff A received KRW 3 million in substitution from the Defendant after around 2008; (d) KRW 3.5 million in total from July 2012; (e) KRW 3.5 million in total from August 201 to October 2012; and (e) KRW 3.5 million in total from the average wage of KRW 3.6 million in total from September 11, 2012 to KRW 3.5 million in total; and (e) KRW 3.5 million in total from September 29, 2012 to KRW 3.7 months in total.3 million in total.

B. However, according to the records, in filing a claim for retirement benefits of this case, Plaintiff A received 2,370,968 won in addition to monthly pay (basic pay) from July 11, 2012 to July 31, 2012, and 3,450,000 won in total from August 1, 2012 to August 31, 2012, and 2,950,000 won in total from September 1, 2012 to September 30, 2012, and only received 2,950,000 won in total from October 1, 2012 to October 10, 2012 (see, e.g., Plaintiff A’s assertion that the aforementioned claim for retirement allowances was not filed for the aforementioned period of 200,000 won in total (see, e.g., Supreme Court Decision 201Da14810, Oct. 1, 2012).

Nevertheless, in calculating the total amount of wages for the three months prior to the retirement of Plaintiff A, the lower court calculated the average wage on the premise that the Plaintiff (the Plaintiff appears to refer to the Plaintiff A) only sought KRW 2.8 million per month in addition to the monthly wage. In so determining, the lower court erred by violating the principle of pleading or by misapprehending the legal doctrine on the calculation of retirement allowances, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 2

A. Where it is recognized that it is difficult to calculate working hours in light of working hours, the form of employment and the nature of business, such as surveillance and control work, etc., even if a wage payment contract is concluded based on the so-called comprehensive wage system with the content that the amount included in statutory allowances is determined as monthly wage or daily wage without calculating the basic wage in advance between an employer and an employee, or the basic wage is calculated in advance without distinguishing legal allowances, and a certain amount is determined as statutory allowances and is to be paid regardless of the number of working hours, such agreement is valid when it is deemed that there is no disadvantage to any other employee and that it is justifiable in light of various circumstances (see, e.g., Supreme Court Decisions 208Da6052, May 13, 2010; 201Do12114, Jun. 26, 2014).

B. The court below acknowledged that there was an implied agreement on the inclusive wage that the sum of various allowances between the plaintiffs and the defendant as instructors of the Bosper Driving Schools as monthly wage (hereinafter referred to as "the comprehensive wage contract in this case"), taking into account the circumstances in its holding, determined that ① during the school examination period for students of the Bosper Driving Schools, due to the nature of the students of the Bospering Driving Schools, the increase in the number of instructors' working hours due to the during-school vacations and the supplementary classes for weekends, while the number of instructors' working hours increases during the school vacations or during the middle and last school vacations, or the reduction in the number of instructors' working hours according to the school schedule, ② even after the reduction of working hours, the monthly wage of the instructors is paid without the reduction, ③ it is difficult to accurately calculate working hours of the instructors of the non-specified driving school, ④ it is difficult to reach a certain level due to the limit on the number of students and the restriction on the operating hours of the school, ⑤ it is unreasonable to view that the Plaintiffs’ average wage in this case’s wage contract or the comprehensive wage standards are inappropriate.

In light of the aforementioned legal principles and records, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on

3. Conclusion

Therefore, among the part against the Plaintiff A, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by the Plaintiff and the appeals by the Plaintiff B are dismissed, and the costs incurred between the Plaintiff B and the Defendant are borne by the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

A person shall be appointed.