[1] Where an employer’s unfair dismissal disposition is invalidated or cancelled, the scope of wages for which the employee may claim payment

[2] In a case where an employee sought payment of an official commendation, etc. for an employee who was not paid during the period of unfair dismissal, the case holding that the judgment below erred by misapprehending the legal principles, although the above official commendation is deemed to be included in the wages which the employee could receive when he continued to work

[3] Whether an employee dismissed by an employer’s unfair labor practice filed an application for remedy under relevant statutes, such as Article 33 of the former Labor Standards Act, and disputing legal relationship in the administrative litigation constitutes “judicial claim,” which is the ground for the interruption of extinctive prescription (affirmative)

[4] In a case where Gap corporation Eul et al. sought the payment of wages not paid during the period of unfair dismissal, the case affirming the judgment below that the extinctive prescription of Eul et al.'s claim for wages during the period of unfair dismissal was interrupted by "judicial claim" in relation to administrative litigation, since Eul et al. applied for remedy for unfair labor practice and participated in the administrative litigation and actively asserted as Gap et al., and asserted its rights

[1] When an employer’s unfair dismissal disposition is null and void or cancelled, the status as an employee who intends to be damaged has continued to exist, and the failure to provide labor between them is attributable to the employer, and thus, an employee may claim payment of the entire amount of wages that may be received in cases where an employee continued to work under Article 538(1) of the Civil Act. Here, the wage for which an employee may claim payment refers to the wage prescribed in Article 2 of the Labor Standards Act. As such, if an employer continues to and regularly pays all the amount of wages paid to an employee as remuneration for his/her work and if the obligation to pay is cancelled by collective agreement, employment rules, wage rules, labor contract, labor contract, labor practice, etc., it shall be included

[2] The case holding that the court below erred in the misapprehension of legal principles in a case where Gap corporation's collective agreement provides that if a member goes in service for one year, one money (3.75 g) shall be given at the end of the year, and if a member is fixed in good attendance (not more than three times), and where Eul et al. sought against Gap corporation for an official commendation which was not paid during the period of unfair dismissal, the above official commendation shall be deemed to be included in the wages which the employee would have continued to work, barring special circumstances.

[3] In a case where an employee is dismissed due to an employer’s unfair labor practice, a claim for confirmation of invalidity of dismissal and payment of wages may be filed as a civil lawsuit, but it constitutes “judicial claim” as a ground for interruption of extinctive prescription, since an employee’s request for remedy was made to the Labor Relations Commission by taking advantage of the administrative remedy procedure under Article 33 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) and Articles 82 through 86 (excluding Article 85(5) of the Trade Union and Labor Relations Adjustment Act (wholly amended by Act No. 8372 of Apr. 11, 2007).

[4] In a case where Gap corporation Eul et al. sought the payment of wages which were not paid during the period of unfair dismissal, the case affirming the judgment below that the statute of limitations of the right to wage payment was interrupted by "judicial claim" in relation to administrative litigation since Eul et al. participated in the administrative litigation for the chairman of the National Labor Relations Commission in order to actively dispute the claims of Eul et al., and it can be deemed that the statute of limitations of the right to wage payment was interrupted by "judicial claim" in relation to administrative litigation, since Eul et al. received a remedy order for unfair labor practices after dismissal from Eul et al., "A company would return Eul et al. to the original position and would have been paid the amount equivalent to the wages which could have been paid if it had worked normally during the period of dismissal."

[1] Article 538(1) of the Civil Act, Article 2(1)5 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [2] Article 538(1) of the Civil Act, Article 2(1)5 of the Labor Standards Act / [3] Article 168 subparag. 1, Article 170 of the Civil Act, Article 33 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007), Articles 82, 83, 84, 85, and 86 of the Trade Union and Labor Relations Adjustment Act / [4] Articles 168 subparag. 1, 170 of the Civil Act, Article 33(1) of the former Labor Standards Act, Article 28(1)5 of the Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007), Article 83 of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 81Da626 delivered on December 22, 1981 (Gong1982, 220), Supreme Court Decision 93Da1463 delivered on December 21, 1993 (Gong1994Sang, 488), Supreme Court Decision 94Da45753, 45760 delivered on November 21, 1995 (Gong196Sang, 40) Supreme Court Decision 98Da34393 delivered on September 3, 199 (Gong199Ha, 2022), Supreme Court Decision 2006Da4829 delivered on December 8, 2006)

Plaintiff 1 and four others (Attorney Kim Jae-chul, Counsel for the plaintiff-appellant)

HTD Korea Co., Ltd. (Law Firm Shin & Kim, Attorneys White-hwan et al., Counsel for the plaintiff-appellant)

Seoul Southern District Court Decision 2010Na9486 decided January 13, 2011

The part of the judgment of the court below against the plaintiffs is reversed, and that part of the case is remanded to the Panel Division of the Seoul Southern District Court. The defendant's supplementary appeal is dismissed.

We examine the grounds of appeal and the grounds of incidental appeal.

1. Judgment on the plaintiffs' grounds of appeal

When an employer’s unfair dismissal disposition is invalidated or cancelled, the status as an employee who intends to be damaged has been continued, and since an employee’s failure to provide labor between them is attributable to the employer, the employee may claim payment of the entire amount of wages that he/she may receive when he/she continued to work under Article 538(1) of the Civil Act (see, e.g., Supreme Court Decisions 81Da626, Dec. 22, 1981; 94Da45753, 45760, Nov. 21, 1995; 94Da45753, 45760, Nov. 21, 1995). Here, wages for which the employee may claim payment refer to all wages under Article 2 of the Labor Standards Act, which are paid continuously and regularly to the employee in return for his/her work, including all the wages under the employer’s collective agreement, rules of employment, wage regulations, labor contract, etc., regardless of their title (see, e.g., Supreme Court Decision 3638Da1963636, Sept. 29, 29,

According to the reasoning of the judgment of the court below, Article 45 of the collective agreement of the defendant company provides that if a member has worked for a year, he shall pay 1 money (3.75 g) at the end of the year, and if he has worked for a year (3.75 g at the end of the year), he shall give an official commendation at the end of the year, and in light of the above legal principles, the above commendation shall also be deemed to be included in the wages that the plaintiffs may have worked for a continuous period,

Nevertheless, the court below dismissed all parts of the plaintiffs' claim for the payment of the above official commendation on the ground that it is difficult to deem the above official commendation to constitute wages that can be received when the plaintiffs continued to work. In so determining, the court below erred by misapprehending the legal principles on the scope of wages, which affected the conclusion of the judgment. The plaintiffs' ground of appeal pointing this out is with merit.

2. Judgment on the Defendant’s grounds of incidental appeal

The reason for the existence of the extinctive prescription system is that respect the permanent state of fact and the locked person is not protected on the right, and in particular, the latter is meaningful in the extinctive prescription. Thus, when the right holder expresses that he is not a locked person on the right by claiming a judicial right, the cause for interrupting prescription becomes the cause for interrupting prescription (see, e.g., Supreme Court en banc Decision 91Da32053, Mar. 31, 1992; Supreme Court Decision 94Da13435, Jun. 30, 1995). Although an administrative litigation is concerned, it constitutes a judicial claim, which is the cause for interrupting the extinctive prescription of a private right (see, e.g., Supreme Court Decisions 93Da21606, May 10, 1994; 2010Da49540, Sept. 30, 2010).

However, in a case where an employee is dismissed due to an employer’s unfair labor practice, the employee may file a claim for confirmation of invalidity of dismissal and payment of wages in a civil lawsuit, but the employee may file a claim for remedy with the Labor Relations Commission by taking advantage of the administrative remedy procedure under Article 33 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) and Articles 82 through 86 (excluding Article 85(5) of the Trade Union and Labor Relations Adjustment Act) of the Trade Union and Labor Relations Adjustment Act, and then seek remedy from the Labor Relations Commission in a way of dispute over the order of remedy or dismissal decision of the Labor Relations Commission, such as a claim for remedy or dismissal of wages. Thus, the employee’s claim for remedy under the relevant Acts and subordinate statutes after filing a request for remedy under the said relevant Acts and subordinate statutes and then disputing its legal relationship in an administrative litigation shall also be deemed as a judicial claim as a ground for interruption of extinctive prescription

On March 31, 2003, after the plaintiffs were dismissed from the defendant company, they received a remedy order from the Seoul Regional Labor Relations Commission that "the defendant company will return the plaintiffs to their respective original positions and pay the amount equivalent to the wages that could have been paid if they had worked normally during the dismissal period". The defendant, who is dissatisfied with the above remedy order, filed an administrative lawsuit to seek cancellation of the above retrial ruling upon the dismissal of the defendant company, and the plaintiffs asserted in the manner of participating in the above administrative litigation for the chairman of the National Labor Relations Commission. The defendant company was sentenced in the first instance court of the above administrative litigation, and the judgment recognized the facts which became final and conclusive after the appellate court and the final appeal, and determined that the defendant's claim by participating in the above administrative litigation for the chairman of the National Labor Relations Commission can be deemed to have exercised a judicial right, and thus, the plaintiffs' claim for the payment of wages during the pertinent dismissal period was interrupted by a judicial claim related to the above administrative litigation.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the interruption of extinctive prescription.

3. Conclusion

Therefore, the part of the judgment below against the plaintiffs is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's supplementary appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)