(영문) 대법원 2014.12.24.선고 2014도12265 판결

1. In principle, an employer shall determine the basic wages for workers when concluding a labor contract and pay them in addition to the allowances on the basis thereof: Provided, That working hours, forms and nature of work;

In cases where a wage payment contract was concluded under the so-called comprehensive wage system with the purport that the total amount of allowances is determined as a monthly wage or daily wage without calculating the basic wage in advance for the convenience of calculation and the employee’s desire to work, and where such contract was concluded with the employee as an allowance, it may not be deemed null and void (see, e.g., Supreme Court Decisions 2003Da66523, Aug. 19, 2005; 2004Da695,6704, Apr. 28, 2006; 2004Da6995,6704, Apr. 28, 2006; 2004Do7164, Jan. 28, 2005; 204Do7164, Jan. 26, 2005).

2. (1) As to the facts charged in the instant case that the Defendant, the representative director of the E Co., Ltd. (hereinafter referred to as “Nonindicted Co., Ltd.”) among the instant facts charged, did not pay KRW 1,159,707 to C within 14 days from the date of retirement without an agreement between the parties on the extension of the payment deadline between the parties, the first instance court determined that, in full view of the circumstances in its reasoning, the so-called comprehensive wage contract between C and the Nonindicted Co., Ltd., which stipulates the sum of the allowances as a monthly wage without calculating the basic wage, was concluded implicitly without calculating the monthly wage in advance, and that it cannot be deemed unfair in light of all the circumstances, and that the above comprehensive wage contract was disadvantageous to C, or that the above inclusive wage contract should be paid more than the minimum wage amount without the approval of the Minister of Employment and Labor with regard to the exclusion of the minimum wage amount under the Minimum Wage Act. Meanwhile, the lower court found the Defendant not guilty on the ground that it should have been paid to C’s total wage amount in fact.

3. A. Examining the reasoning of the first instance judgment and the lower judgment in light of the evidence duly admitted, the part that the wage payment contract was concluded between C and the Nonindicted Company based on the comprehensive wage system among the first instance judgment and the lower judgment and the part that the Nonindicted Company should pay C wages above the minimum wage amount is consistent with the aforementioned legal doctrine.

B. However, if the wage payment contract was concluded between C and the non-indicted company on the comprehensive wage system, the total monthly wage that C received as the comprehensive wage is included in the wage for overtime hours, night work, etc. Therefore, in light of the aforementioned legal principles, whether the wage paid by the non-indicted company to C falls short of the minimum wage should be determined on the basis of the basic wage, other than the wage for overtime hours, night work, etc., from the total monthly wage received by C.

However, the lower court did not determine whether it falls short of the minimum wage by such method, but did not determine whether it falls short of the minimum wage by obtaining the first instance court’s decision, which calculated the amount of wages that should have been paid every month on the basis of only the actual time of overtime work, night work, etc., without separately considering the hours of overtime work, and thereby, did not properly reflect the circumstances of additional wages, etc. for overtime work, night work, etc., and did so.

Therefore, this part of the judgment below is erroneous in the misapprehension of legal principles as to the method of determining whether the wage paid under the wage payment contract under the comprehensive wage system falls short of the minimum wage, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.