(영문) 서울중앙지방법원 2021.01.14 2019나79130

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(영문) 서울중앙지방법원 2021.01.14 2019나79130

근로에관한 소송

Text

Of the judgment of the first instance, the part against the Defendant ordering the Plaintiff to pay more than KRW 15,530,323.

Reasons

1. The reasons for the acceptance of the judgment of the court of first instance are as stated in the reasoning of the judgment of the court of first instance, except for the addition as follows, and thus, they are cited by the main sentence of Article 420 of the Civil Procedure Act.

2. The addition of the part in the judgment of the court of first instance shall be as follows, on the 3rd page of the judgment of the court of first instance.

As to this, the Defendant asserts that, for 12 months recognized by the Plaintiff as the first instance trial (specificly from January 14, 2019 to September 2, 2019), the Plaintiff shall be entitled to a total of KRW 13,138,750 as wages, and thus, the Plaintiff shall be entitled to a deduction as interim income.

On the other hand, since the wage that a person dismissed due to the employer's return to work has been paid to another worker during the period of dismissal falls under the profit accrued from the discharge of his/her obligation provided for in Article 538 (2) of the Civil Act, the employer can deduct the above profit (the so-called interim income) from the payment of the wage during the period of dismissal. However, in cases where the worker suspends his/her business due to the employer's return to the purport that Article 38 of the Labor Standards Act (Article 46 of the current Labor Standards Act) of the Labor Standards Act intends to guarantee the basic livelihood of the worker, the employer shall pay not less than 70/10 of the average wage during the period of suspension of business, which includes cases where the worker is unable to provide his/her labor against his/her will despite his/her intention to provide his/her labor according to the labor contract. Thus, the amount within the scope of temporary closure allowance provided for in Article 388 of the Labor Standards Act (Article 46 of the current Labor Standards Act), among the amount that the worker can receive, 193.

참조조문

-민법 제538조 제2항

참조판례

-대법원 1993. 11. 9. 선고 93다37915 판결

유사 판례

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