The validity of an employment contract that stipulates that a certain amount shall be paid every month for overtime, night, or holiday allowances, regardless of actual results of service;

Even if a contract was concluded with the purport that the hours, nights, holidays allowances, etc. to be paid according to the actual performance of work should be taken into account in working hours, the form of work, the nature of work, etc. and that the convenience of calculation and the desire of employees to work as an allowance was promoted, it shall not be invalidated if there is no disadvantage to workers and it is deemed justifiable in light of all circumstances.

Articles 22 and 46 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Attorney Woo-soo et al., Counsel for the plaintiff-appellant

[Defendant-Appellant] Han Jin Construction Co., Ltd., Counsel for defendant-appellant-appellant

Seoul High Court Decision 89Na12614 delivered on November 10, 1989

The part of the judgment below concerning overtime work allowance and retirement allowance claim shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal dismissed shall be assessed against the defendant.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant's work hours are not easy to work the same day due to extreme rain, etc., and that it is difficult for the defendant to appropriately repeat work and rest hours every day according to the weather conditions of every day, materials and equipment supply conditions, etc. In particular, it is difficult for the plaintiff to clearly distinguish work hours and break time in advance, and it is difficult for the defendant to accurately confirm work hours. Considering that the defendant's work hours are not calculated and paid individually, it is hard for the defendant company to conclude that the defendant's work hours are paid for 2 hours every day regardless of the actual working hours and 288 hours every year (20 +80), and that the defendant's request for payment of overtime work allowances should be made within the scope of the plaintiff's previous work hours by considering the above circumstances, such as overtime work hours, and thus, it should be acknowledged that the defendant's request for payment of overtime work allowances should be made within the scope of the plaintiff's previous work hours under the Labor Standards Act.

However, even if the contract was concluded by the defendant to pay a certain amount of monthly allowance to the above employees with overtime work hours and the nature of the above work hours, it cannot be deemed null and void if it is deemed that there is no disadvantage to the workers and that it is justifiable in light of all circumstances (see Supreme Court Decision 89Meu15939, Nov. 27, 1990). According to each of the above evidence No. 17-1 through 16 (Detailed Statement of Allowances) and evidence No. 20 (Management Benefit Statement), it is necessary to determine a certain amount of monthly allowance to pay overtime work allowances to the employees abroad in the same manner as that of the above 3-month allowance, and it is necessary to determine a certain amount of monthly allowance to pay overtime work allowances to the employees abroad, and there is no difference between the above 2-month allowance and the above 3-month allowance and the above 3-month allowance to the employees abroad. Meanwhile, it is also necessary to determine a certain amount of monthly allowance in the above 2-month allowance with the basic allowance No.5 and bonus No.2.3.

Nevertheless, without examining the above point of view, the court below rejected the above evidence Nos. 1-1, 2, 3, and 2-2 on the ground that the above evidence Nos. 1-1, 2, 3, and 2-2 are not inconsistent with each other, calculated ordinary wages including the above overtime work allowances already paid and calculated unpaid overtime work allowances based on this calculation, and calculated retirement allowances in consideration of the average wage calculation for the calculation of retirement allowances. Accordingly, the part of the judgment below concerning overtime work allowances and retirement allowances in the judgment below is erroneous in the misapprehension of the rules of evidence and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Accordingly, the appeal in this part is not dismissed.

Therefore, the part of the judgment of the court below concerning overtime work allowances and retirement allowances is reversed, and this part of the case is remanded to the court below, and the remaining appeal by the plaintiff is dismissed, and the costs of appeal by the court below are assessed against the losing party. It is so decided as

Justices Choi Jae-ho (Presiding Justice)