(a) The scope of standard working hours prescribed in the Labor Standards Act; and

(b) Whether an employer is obligated to pay annual and monthly leave allowances in cases where an employee who has continued to work without using his/her annual or monthly leave and without exercising his/her right to claim monthly leave (affirmative);

C. Whether there is a duty to pay additional wages under Article 46 of the Labor Standards Act for annual and monthly paid leave allowances (negative)

D. Whether the paid holiday system under Article 45 of the Labor Standards Act applies to the shift work system (affirmative)

A. “The prescribed working hours per day” as the basis for the calculation of ordinary wages refers to the working hours set within the scope of the standard working hours under the main text of Article 42(1), Article 43 or the main text of Article 55 of the Labor Standards Act (Article 31(3) of the Enforcement Decree of the Labor Standards Act), and the agreed working hours must be the basis for the calculation of the hourly ordinary wages in preference to the above standard working hours.

(b) If a worker continues to work without using annual or monthly paid leave, he/she may claim the employer the amount of wages equivalent to the number of his/her paid leave days (annual or monthly paid leave allowances). Such claim for wages occurs even if the worker did not exercise his/her right to annual or monthly paid leave before his/her retirement, and such obligation for the payment of monthly paid leave allowance arises regardless of the invalidity of the employer’s remuneration provision.

C. In light of the fact that the premium payment system as stipulated in Article 46 of the Labor Standards Act and the annual wage payment system as stipulated in Articles 47 and 48 of the same Act are different systems, and each provision of the law also separates holidays and vacations, it is reasonable to view that the "Holiday" as stipulated in Article 46 of the same Act does not include annual or monthly leave as stipulated in Articles 47 and 48 of the same Act, and Article 48 (2) of the same Act provides that where the total number of vacations exceeds 20 days, ordinary wages shall be paid for the excess number of vacations and paid leave shall not be granted, and it is reasonable to view that the ordinary wages should be paid in addition to the case where the compensation is to be paid for the number of vacations less than 20 days, it is reasonable to view that the ordinary wages should not be included in the annual paid leave allowances.

D. Article 45 of the Labor Standards Act does not apply to cases where an employer grants workers at least one paid holiday per week average to workers continuously work every day, but also applies to so-called shift system in which two-day work-day work day is repeated.

A. Articles 19(2) and 55 of the Labor Standards Act, Article 42 of the former Labor Standards Act (amended by Act No. 3965 of Nov. 28, 1987), Article 43 of the former Labor Standards Act (amended by Act No. 4220 of Nov. 13, 1990), Article 31(3) and (b) of the Enforcement Decree of the Labor Standards Act. Articles 47, 48, and 48 of the Labor Standards Act are Articles 46 and 45 of the same Act.

(a)B. (C) Decision 90∑12493 decided Dec. 26, 1990 (Gong1991, 618) (Gong1991, 621) decided Dec. 26, 1990 (Gong1991, 621) (Gong1991, 2015) decided Jun. 28, 1991 (Gong1991, 2015).

[Plaintiff-Appellant] Cho Young-ro et al., Counsel for plaintiff-appellant

Seoul National University Hospital (Law Firm Dongyang General Law Firm, Attorneys Choi Gi-do et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 89Na48545 delivered on March 30, 1990

The part concerning the Plaintiff’s annual and monthly leave allowances among the original judgment shall be reversed, and the case shall be remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal against the dismissed portion are assessed against the defendant.

1. Regarding ground of appeal No. 1

“The prescribed working hours per day” as the basis for the calculation of ordinary wages refers to the hours set within the standard working hours under the main text of Article 42(1), the main text of Article 43, or the main text of Article 55 of the Labor Standards Act (Article 31(3) of the Enforcement Decree of the Labor Standards Act). The agreed working hours must be the basis for the calculation of the hourly ordinary wage in preference to the above standard working hours. In this regard, the court below, in that sense, calculated the number of daily working hours by adding the number of paid hours to the number of hours per day per week as prescribed in Article 12 of the Service Regulations of the Defendant Hospital by deeming the Plaintiff’s working hours (excluding the hours of paid holidays) to 44 hours per week, and calculated the number of monthly working hours as 365/12 days per month by deeming the prescribed working hours per month to be 225.9 hours per month (see Supreme Court Decision 90Meu14758, Jun. 28, 1991; Supreme Court Decision 20Meu1369, Dec. 2909.

The Supreme Court Decisions 78Da1372 delivered on October 10, 1978 and 84Meu254 delivered on December 24, 1985, which points out the theory of the lawsuit, purport that Article 42(1) of the former Labor Standards Act (amended by Act No. 4099 delivered on March 29, 198) shall apply to working hours between the labor and management, or that if the basic working hours per day are eight hours between the labor and management, it is inappropriate to invoke this case because the monthly working hours, which serves as the basis of the hourly ordinary wage, are different from this case, are different from this case, and therefore, it is not appropriate to invoke this case. The argument is without merit.

2. Regarding ground of appeal No. 2

A. Where a worker continues to work without using the annual or monthly paid leave, the employer may claim the amount of wages equivalent to the number of days of such paid leave (the monthly paid leave allowance). Such claim for wages arises even if the worker did not exercise his/her right to claim annual or monthly paid leave before his/her retirement (see, e.g., Supreme Court Decisions 90Meu14758, Jun. 28, 191; 90Meu12493, Dec. 26, 1990); therefore, the Defendant’s obligation to pay the annual or monthly paid leave allowance arises regardless of the invalidity of the Defendant’s payment provision. Therefore, there is no reason to discuss this issue.

B. However, according to the reasoning of the judgment below, the court below held that the plaintiff's allowance to be paid for his/her work without obtaining each annual and monthly leave at the time of original adjudication is 150 percent of ordinary wages. The purpose of the payment of premium increase wage under Article 46 of the Labor Standards Act is to provide corresponding economic compensation because the payment of overtime hours, night and holiday work is more than that of his/her workers in standard work hours and limits his/her freedom of living. The annual and monthly leave under Articles 47 and 48 of the Labor Standards Act is different from that of his/her overtime work or paid leave, and the purpose of the provision of each law is different from that of his/her worker's mental and physical leave, and it is reasonable to view that the "days" under Article 46 of the Labor Standards Act does not include the annual leave under Articles 47 and 48 of the Labor Standards Act, and that it does not include the number of days of paid leave exceeding 20 days in the case of his/her ordinary wages (see Article 48 (2) of the same Act.

Therefore, in the original judgment with different opinions, the court below erred by misapprehending the legal principles on the annual leave allowance and the additional wage under Article 46 of the Labor Standards Act, and thus, it is reasonable to point out the above points.

3. As to the third ground for appeal

The "special system of working hours" under Article 47-2 subparagraph 3 of the Labor Standards Act can exceed eight hours a day with the approval of the Minister of Labor when it is necessary for public interest or national defense. Thus, in this case where there is no evidence that the court below satisfied the requirements of the aforementioned legal justice regarding the special case of working hours in this case, it is proper that the court below recognized the portion exceeding eight hours a day of working hours as overtime hours, and there is no error in the misapprehension of legal principles as to the calculation of the number of working hours in this case.

The Supreme Court Decision 71Da1713 Decided December 28, 1971, which cited the theory of the lawsuit, is not appropriate in this case since the contents of the agreement between labor and management are related to the matter within the prescribed scope of the Labor Standards Act.

The issue is groundless.

4. As to the fourth ground for appeal

Article 45 of the Labor Standards Act provides that "an employer shall grant workers at least one paid holiday per week average shall be applied to the so-called shift work which makes two-day work hours off (non-number) as the Plaintiff, while interpreting that Article 45 of the Labor Standards Act does not apply to the so-called shift work (see, e.g., Supreme Court Decision 89Meu145, Nov. 28, 1989). In the meantime, the court below recognized that the number of hours actually worked on the Plaintiff is no dispute between the parties, and then recognized that the court below recognized the holiday work allowance in this case is correct, and there is no illegality in the misapprehension of legal principles as to the defendant's assertion or holiday work allowance, such as the theory of lawsuit, and there is no ground for appeal.

5. Therefore, the part concerning the Plaintiff’s annual leave allowance among the original judgment is reversed and remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Young-young (Presiding Justice)