Whether the unpaid bonus is included in the total wage, which forms the basis for calculating the insurance premium under the former Industrial Accident Compensation Insurance Act, where workers return the unpaid bonus to reduce the business difficulties of the company (affirmative)

Article 67 (1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6100 of Dec. 31, 1999) includes not only the amount of the total wage paid by the employer but also the amount determined to be paid to the employee. Bonuses are wages to be paid to the employee by the original company. It is merely decided that the employee has returned the bonus in arrears to reduce the business difficulties of the company, and it cannot be deemed as re-determined by reducing the amount of the initially determined amount of the bonus. As such, even if the parties have not actually paid the bonus by returning the bonus, even if the parties concerned do not actually receive the bonus, it can bring about the same effect as the bonus paid in other legal relations such as taxes derived from the bonus and retirement allowances, even if the actual company is exempted from the obligation to pay the bonus, regardless of the nature and average wages of the Labor Standards Act, it is still included in the legal relations that can still be included in the amount of the insurance premium paid by the company under Article 41 and Article 42 of the former Industrial Accident Compensation Insurance Act (amended by Act).

[1] Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6100 of Dec. 31, 1999), Article 65 (1) and (3), and Article 67 of the same Act, Article 18 of the Labor Standards Act

E. EXS Co., Ltd. (formerly, Busan High School Co., Ltd.) (Law Firm Cheong rate, Attorneys Kim Jong-mun, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Changwon District Court Decision 2000Gu2003 delivered on May 17, 2001

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The lower judgment is revoked. The Defendant’s disposition of imposition of KRW 61,44,430 against the Plaintiff on December 28, 1999 is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or are recognized by Gap evidence 4-1, 2, 3, 5, 6, 2-2, 7-1, 2, and 3 of Eul evidence 4-1, 5, 6, 2-2, 7-1, 7-1, 2, and 3 as witnesses of the court below, and Kimcheon-do as a whole of all the arguments.

A. At the time of the collective agreement in 1997 with the Plaintiff’s Chang Factory Trade Union (hereinafter “Plaintiff’s Union”), the Plaintiff agreed to pay 750% bonus to the employees of the Changwon Factory based on ordinary wage in 1998 on the monthly salary of even number of months, 50% on the New Year’s Day, 50% on the New Year’s Monthly Wage, and 100% on the New Year’s Year’s Year’s Year’s Year’s Year’s Year’

B. The plaintiff paid only 50% to the above workers among the bonuses in 1998 as stated in the above paragraph (a) above, and the total amount of 300% (10% x 3; hereinafter referred to as "the bonus in this case") to be paid in February, April and June 1998 was not paid in time due to business difficulties.

C. On April 17, 1998, the Plaintiff’s trade union violated the Labor Standards Act, such as the Plaintiff’s delayed payment of piece rates in 197 and part of bonuses in 1998 at the Changwon Local Labor Office, and filed a complaint with the Plaintiff’s representative director.

D. On July 31, 1998, the Plaintiff and the Plaintiff Trade Union agreed on the bonus of 1998 as follows, while the wage figures of 1998 agreed on the same resolution:

(1) To return 300% of the bonus in 1998 among the 750% of the bonus, and to return the bonus in this case in arrears as above, and the remaining 400% shall be paid on the monthly salary of the even number of months as agreed in the above A.

(2) Taxes on the return of the instant bonus shall be borne by the Plaintiff and shall not affect the calculation of the retirement allowance (which shall be construed as having been based on the wages before being returned when calculating the retirement allowance).

(3) The Plaintiff Trade Union shall withdraw the complaint as stated in paragraph (c) above.

E. In accordance with the agreement of the above paragraph (d) above, the plaintiff trade union withdrawn the complaint as stated in the above paragraph (c) on the date of the agreement, and thereafter the plaintiff did not pay the above workers the bonus of this case.

F. On July 31, 1999, the Plaintiff and the Plaintiff Trade Union agreed to pay the full amount of the bonus in 1999, while the wage in 1999 was decided by the same resolution.

G. In paying the insurance premium to the Defendant by November 15, 1999, the Plaintiff reported and paid the final premium for the year 1998 and the estimated premium for the year 1999, by a method of calculating the insurance premium by excluding the amount equivalent to the bonus of this case from the total amount of wages as prescribed by the relevant Acts and subordinate statutes, as the industrial accident compensation insurance subscriber.

H. On December 28, 1999, the Defendant considered that the bonus of this case should be included in the total amount of wages included in the calculation of the premium, and imposed 61,44,430 won, including the final premium of 198, which corresponds to the bonus of this case, 44,731,90 won, and additional dues of 4,473,190 won, 5,868,830 won, and additional dues of 4,868,830 won, and 6,370,420 won, which correspond to the bonus of this case (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff, at the time of the agreement on the above 1.C., decided to reduce the amount of the bonus in 1998 as the amount of the bonus, that is, the plaintiff would not pay it to the employees. Accordingly, the amount corresponding to the bonus in this case should be excluded from the total amount of wages to be included in the calculation of the premium under the related Acts and subordinate statutes as stated in paragraph (2) below, but the defendant calculated and imposed the premium, etc. on the ground that it is included in the total wage. Thus, the disposition in this case asserted that the disposition in this case is unlawful.

B. Relevant statutes

(1) According to Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6100 of Dec. 31, 1999; hereinafter the same), workers, wages, average wages, and ordinary wages mean workers, wages, average wages, and ordinary wages under the Labor Standards Act, respectively. Article 18 of the Labor Standards Act provides that wages refer to all money and valuables, regardless of their names, which the employer pays to workers as wages, salary, or any other kind of money and valuables, regardless of their names.

(2) According to Article 65(1) and (3) of the Act, the insured shall report and pay to the Corporation the amount calculated by multiplying the presumed amount of the total wages to be paid to all workers employed for each insurance year for that one year (in cases prescribed by the Presidential Decree, the total wages paid to all workers employed in the previous year) by the insurance premium rate (hereinafter referred to as “estimated premium”) within 70 days from the beginning of the insurance year, as prescribed by the Presidential Decree (Paragraph 1), and the Corporation shall investigate the fact, calculate and collect the estimated premium if the insured fails to make a report under paragraph 1 or is different from the fact, and if there is any amount already paid, it shall collect the difference (Paragraph 3).

According to Article 67 (1), (2), (3) and (4) of the Act, the insured shall report to the Corporation the amount (hereinafter referred to as the “final premium”) calculated by multiplying the total amount of premium paid (including the amount determined to be paid) to all workers employed by the end of each insurance year or by the day on which the insurance relation expires, within 70 days from the beginning of the following insurance year, under the conditions as prescribed by the Presidential Decree, and if the amount of the estimated premium paid or collected additionally under Article 65 of the Act exceeds the amount of the final premium of paragraph (1), the Corporation shall return the excess amount to the insured; if short, the insured shall pay the shortage within 70 days from the beginning of the following insurance year (paragraph (2)); and if the insured fails to make a report under paragraph (1) or is different from the fact, the Corporation shall investigate the fact and calculate the amount of final premium (paragraph (3)), and if the amount exceeds the amount of the final premium to be collected, the Corporation shall collect the amount of the final premium.

(3) According to Article 70 of the Act, when the Corporation collects insurance premiums pursuant to Article 67(4) of the Act, it shall collect as additional dues an amount equivalent to 10/100 of the insurance premiums to be collected. Under Article 71(1) of the Act, the Corporation shall collect as additional dues the amount of arrears calculated by the number of days from the day after the expiration date of the payment period to the day before the day when the insurance premiums are fully paid or settled in accordance with the rate prescribed by the Presidential Decree, within the limit of seven days per day in case the insured fails to pay the insurance premiums by the payment period under Articles 65 through 67 of the Act.

(c) Markets:

The total wage under Article 67 (1) of the Act includes not only the amount determined to be paid by the employer but also the amount determined to be paid by the employee. (b) The facts and contents of the above Paragraph (1) as well as the following circumstances revealed: (d) The bonus of this case is originally to be paid to the employee by the Plaintiff in order to reduce the business difficulties of the Plaintiff company; and (b) the bonus of this case is to be paid to the employee; (c) it cannot be deemed that the amount of the premium of this case is reduced by the amount of the originally determined amount of the bonus of this case; (d) even if the parties were to return the bonus of this case without the payment of the bonus of this case, the bonus of this case would still be included in the amount of the insurance premium of this case, regardless of the fact that the Plaintiff was actually obligated to pay the wage of this case; and (d) the bonus of this case would still be included in the calculation of the amount of the insurance premium of this case to the Defendant, which would be included in the calculation of the amount of the wage of this case.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court below is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Gangwon-gu (Presiding Judge)