[1] The scope of wages as the basis for calculating average wages

[2] In a case where Party A entered into a labor contract under which Party B would receive a certain amount of monthly wage and pay Party B, while serving as a doctor at Party B’s hospital, the case holding that the amount equivalent to Party B’s wage and salary tax, etc. paid by Party B should be included in the total wage as a basis for calculating the average wage

[1] The total wage, which forms the basis for calculating the average wage, includes all the money and valuables paid by an employer to an employee as compensation for work, which is continuously and regularly paid to an employee and whose obligation to pay is crossed out by the employer.

[2] In a case where Party A entered into an employment contract under which Party B would receive a certain amount of monthly wage as salary and pay Party B the wage tax imposed thereon, regardless of its title, the case holding that the lower court erred by misapprehending the legal doctrine, which calculated the average wage on the basis of the actual receipt amount of Party B’s average wage, even though the amount equivalent to Party B’s wage tax, etc. paid on behalf of Party B should be included in the total wage as a basis for calculating the average wage

[1] Article 2 (1) 5 and 6 of the Labor Standards Act / [2] Article 2 (1) 5 and 6 of the Labor Standards Act, Article 8 (1) of the Guarantee of Workers' Retirement Benefits Act

[1] Supreme Court Decision 2011Da23149 decided July 14, 201 (Gong2011Ha, 1621)

Plaintiff (Law Firm Sejong, Attorneys Jeon Young-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Changwon, Attorneys Jeong Jong-ju, Counsel for the defendant-appellant)

Busan High Court (Chowon) Decision 2014Na20823 decided December 17, 2015

The part of the judgment of the court below against the plaintiff as to the conjunctive claim is reversed, and that part of the case is remanded to Busan High Court. The appeal as to the plaintiff's primary claim is dismissed.

The grounds of appeal are examined.

1. As to the main claim

The lower court dismissed the Plaintiff’s primary claim seeking the amount of profit distribution during the period of the same business based on the premise of the business agreement, on the grounds that the business agreement on the instant hospital, prepared by the original Defendant, constitutes a false conspiracy and becomes null and void, and that there is a lack of evidence to acknowledge the business agreement.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the probative value of a disposal document, contrary to what is alleged in the grounds of appeal.

2. As to the conjunctive claim

A. Ground of appeal No. 2

The Plaintiff asserted that the monthly wage for the calculation of the Plaintiff’s retirement pay should be KRW 23 million, including the wage and salary tax, and that the monthly wage should be KRW 35,678,330,00,000,00,000, including the monthly wage for the calculation of the Plaintiff’s retirement pay.

The court below rejected the above assertion on the grounds that the purport of the agreement between the plaintiff and the defendant on the wage was that the plaintiff's wage was paid to the plaintiff as well as the amount of 23 million won received by the plaintiff, and the wage and salary tax imposed on him was paid by the defendant on his behalf, based on the circumstances in its holding.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the interpretation of expression of intent as to average wages for the calculation of retirement allowances, contrary to what is alleged in the grounds of appeal

B. Ground of appeal No. 3

1) The total wage, which forms the basis for calculating the average wage, is all the money and valuables that an employer pays to an employee as compensation for work, including all the money and valuables, in which the employer has continuously and regularly paid to an employee and the obligation to pay is crossed out to the employer (see Supreme Court Decision 2011Da23149, Jul. 14, 2011, etc.).

2) According to the reasoning of the lower judgment and the record, the Plaintiff and the Defendant’s hospital entered into a labor contract under which the Defendant would pay the monthly amount of wage and salary income tax, etc. imposed on him/her, while serving as a doctor, and the Plaintiff received KRW 23 million monthly wage from January 21, 2012 to April 20, 2012 for three months before his/her retirement, and the Defendant paid the monthly amount of KRW 17,50,870 on behalf of the Defendant for the period from January 1, 2012 to April 21, 2012.

Examining the above facts in light of the legal principles as seen earlier, since the Defendant decided to pay on behalf of the Plaintiff for the amount of actual receipt each month, the amount equivalent to the pertinent earned income tax, etc. that the Defendant decided to pay on behalf of the Plaintiff, regardless of its title, shall be included in the total wage as the basis for calculating the average wage. Therefore, when calculating the retirement allowance to be paid to the Plaintiff, the amount of the earned income tax, etc. borne by the Defendant for three (3) months prior to the Plaintiff’

Nevertheless, in calculating the Plaintiff’s retirement allowance, the lower court calculated the average wage based solely on the Plaintiff’s actual receipt amount of KRW 23 million, instead of including wage and salary tax, etc. for the period of three months prior to the Plaintiff’s retirement as the amount of the Plaintiff’s retirement. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of wages to be included in the average wage, thereby adversely affecting the conclusion of the judgment. The allegation contained in the

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal against the Plaintiff’s primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Min You-sook (Presiding Justice)