(영문) 서울고등법원 춘천재판부 2016.1.13.선고 2015나392 판결

1. The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiffs' claim corresponding to that part is dismissed.

2. The plaintiffs' appeal is dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

Purport of claim and appeal

1. Purport of claim

The Defendant: (a) filed a claim with Plaintiff A, KRW 37,294,690; KRW 38,213,240 with Plaintiff C; KRW 4,851,070 with Plaintiff D; KRW 5,965,080 with Plaintiff D; KRW 23,793,570 with Plaintiff E; KRW 15,862,380 with Plaintiff F; KRW 17,086,397 with Plaintiff H and I; KRW 11,390,931 with Plaintiff C; KRW 15,782,50 with Plaintiff J; KRW 10,521,670 with Plaintiff C; and KRW 6,427,40 with Plaintiff M; and KRW 427,360 with the remainder of the plaintiffs; and (b) the Plaintiff’s claim amount with the pertinent column 20 per annum after deducting the remainder of the plaintiffs’ claim amount from each of the instant claims.

2. Purport of appeal

A. The plaintiffs: The judgment of the first instance court is modified as stated in the purport of the claim.

(b) Defendant: Paragraph (1) of this Article;

Reasons

1. Partial citement of judgment of the first instance;

Pursuant to the main sentence of Article 420 of the Civil Procedure Act, the reasons for the judgment of the first instance court shall be cited to the part of paragraph 3(a)(3)(3)(a), and after the third part of paragraph 9, the following is added: “The spouse of the N’s spouse who died on December 5, 2013, Plaintiff E, and Plaintiff E who died on April 2, 2014, succeeded to the claim for wages and retirement allowances against each deceased’s Defendant in accordance with the inheritance portion (spouse’s spouse’s 60%, 40%, and 19%),” and the “certificate No. 18 and 19(17)” shall be added respectively.

2. Determination on regular bonuses

A. The parties' assertion

(1) The plaintiffs

(A) Under the wage rules, the Defendant’s regular bonus paid every two months to the employees receiving the salary (hereinafter “general employees”) and the employees receiving the salary pursuant to the annual salary system (hereinafter “annual salary system employees”) and the annual salary system, and the regular bonus paid every one month to the employees receiving the salary (hereinafter “contractual employees”) according to the regulations on non-regular employment and the regulations on the operation of indefinite contract employees constitutes ordinary wages because the regular bonus paid every six months to all the employees at the daily rate and the fixed scope of whether and not to pay the salary. The provision that the regular bonus shall not be paid for the regular employees and the annual salary system employees working for less than 15 days in the base period (Article 7 of the bonus payment guidelines (Article 3) and Article 6(2) of the Enforcement Rule of the annual salary system (Article 6(2) of the Regulations on the Payment of Bonuses) (Article 2 of the Regulations on the Payment of Bonuses) cannot be determined only in exceptional circumstances where the regular bonus payment cannot be made for more than 45 days during the base period.

(B) Article 7(1) and (2) of the Defendant’s wage rules (Evidence 1) and Article 9(1) and (2) of the annual salary system (Evidence 1) provide that the person whose benefits are changed or absent due to various reasons shall be paid benefits (hereinafter collectively referred to as “daily calculation rules”). Thus, it is unlawful that the Defendant’s provision excluding the payment of regular bonuses in the guidelines for payment of bonuses and the detailed rules for the enforcement of the annual salary system, which can only provide for detailed standards and procedures for the enforcement of the above higher-level rules, is unlawful. Since the above provision, which is a general provision on benefits, and the two Chapters (Calculation and Payment) of the annual salary system, should apply to all cases except where there are any other provisions in the above regulations or the collective agreement, which is its superior, or where it is possible to apply due to its nature, the said provision should also be applied to regular bonuses. Meanwhile, according to the enactment and amendment of the former Regulations on Delegation (No. 15) and the Defendant’s guidelines for direct payment of bonuses.

(C) Unlike ordinary employees and annual salary system employees, a regular bonus should be paid to contract-based employees who have no explicit provision that excludes regular bonuses. The contract-based employees merely did not raise an objection or lawsuit against the Defendant’s regular bonus payment method because they did not accurately recognize the scope of ordinary wages, and thus, they cannot be deemed to have made an express or implied agreement that would not pay regular bonuses when they worked for less than 15 days during the base period, or to have established such labor-management practices.

(2) Defendant

(A) The regular bonus that shall be paid only for a certain number of days is a fixed wage. In the case of the plaintiffs who account for 81 cases among 92 cases where the defendant applied the provision that excludes regular bonus payments from 2009 to January 2014, the reason and class of work for less than 15 days are diverse, and the frequency of its application is extremely low or private.

(B) In light of the language and structure of Article 21(2) of the Benefit Regulations, Article 7 subparag. 3 of the Enforcement Rule of the Benefit Regulations (Evidence 2), Article 16(2) of the annual salary system, which provides that detailed matters concerning the specific timing and criteria for the payment of regular bonuses shall be separately determined, there is no obligation to pay a regular bonus on a daily basis. In particular, in Chapter II of the Benefit Regulations, Article 5(1) (the amount of benefits shall be paid on the 21st day of each month), Article 6 (1) (the amount of benefits shall be calculated on the 1st day of each month to the last day of each month) and Article 7(1) and (2) of the same Regulations apply only to the annual salary calculated on a monthly basis from the 21st day of each month to the last day of each month, and Article 6(1) (the basic annual salary shall be paid on the 21st day of each month) of the Wage Regulations shall not apply to the regular bonus calculation on the 21st day of each month.

(C) Contract-based employees have no objection or lawsuit, even though they clearly recognize that regular bonuses cannot be paid when they work for less than 15 days during the base period of 15 days, so they should be deemed to have established implied labor-management agreements or labor practices on the condition that regular bonuses be excluded.

(c)whether it constitutes ordinary wages;

The case holding that the defendant, since 2005, paid a regular bonus amounting to 270,000 won (300,000 won from January 1, 201) to general workers every six times a year for each month, and paid a regular bonus amounting to 600% of the monthly basic salary to 600,000 won (300,000 won) to 200% of the monthly basic salary, and the defendant paid a regular bonus amounting to 270,000 won (30,000 won from January 1, 201) to 30% of the monthly regular bonus amounting to 200,000 won to 30% of the monthly basic salary, and the defendant did not pay a regular bonus amounting to 15,000 won to 9,000 won to 20,0000 won to 20,0000 won to 30,000 employees per year from 15,000.

30 times) The fact that this regular bonus has not been paid can be recognized. (On the other hand, the judgment of the first instance court is based on the "number of times in which the defendant's bonus has been paid ( approximately 30 times)" rather than the "number of individual workers who have been paid the bonus ( approximately 93,00 times)" and the number of cases in which the regular bonus has not been paid is calculated by 0.086% of the frequency of non-paid regular bonus is distorted.

This legal doctrine and the above facts are revealed, namely, ① the ex post facto working conditions which make it impossible to determine the amount of wages or 10 days, or the current status of 20 days which are less than 15 days, and thus, it is difficult to recognize a fixed period of 40 days as long as the defendant provided a certain number of working days (15 days during the base period) in addition to the provision of regular bonus 20 under the provision of 10,000,000,000 won for 20,000,000 won and 40,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000).

C. Validity and scope of application of the relevant provisions

(1) Legal principles on the validity of the rules of employment

The wage rules and regulations, the bonus payment guidelines, the annual salary system, the implementation rules, the non-regular employment rules, the regulations on non-regular workers, and the regulations on the operation of indefinite contract workers (hereinafter collectively referred to as "related regulations") are all stipulated, regardless of their names, so they constitute "the employment rules under Article 93 of the Labor Standards Act" (see, e.g., Supreme Court Decision 93Da30181, May 10, 1994). The employment rules shall not be inconsistent with the statutes or the collective agreement and regulations applied to the relevant business or workplace (Article 96(1) of the Labor Standards Act), but the employment rules that provide matters favorable to workers or not stipulated in the collective agreement are not inconsistent with the collective agreement.

(2) Determination

(4) The Defendant’s collective agreement provides that the aforementioned provisions concerning bonuses shall be limited to the payment rate, the payment period, and the base period of the annual salary, and that the payment of bonuses shall not be prescribed or delegated to the lower regulations. In full view of the following: (i) the evidence No. 6-2, No. 3, No. 4, and No. 11; (ii) the evidence No. 12, No. 13-1, No. 14-1, No. 2, and No. 14; and (iii) the total amount of bonuses No. 1 and No. 14 are less than 6-2; and (ii) the fact that there is no need to apply the aforementioned provisions concerning bonuses to the Defendant on April 12, 201; (iii) the fact that there is no need to apply the provision regarding the payment of bonuses to the Defendant for a long time since the date of the enactment of the Rules on Benefit No. 1, supra, and that there is no violation of the Labor Standards Act’s provision regarding the payment of bonuses.

On the other hand, Article 2 of the Regulations on the Delegation Determination provides that "the matters concerning the delegation and discretion of authority shall be governed by these regulations except for the case where there is a separate provision concerning the delegation and discretion of authority". Article 16 (2) of the Rules on the Payment of Annual Salaries provides that "the standards for bonuses shall be determined separately by the president." Article 6 (2) of the Rules on the Payment of Annual Salaries provides that "the matters to be ordered by the president to make a special necessity may be changed according to the direction of the president, notwithstanding the provisions of these regulations." Article 6 (2) of the Regulations provides that "the standards for the operation and classification of the attached Table of the above regulations provide that "the power of the department of direct control shall be flexibly operated in accordance with the characteristics, contents and importance of the organization, regardless of the standards for the Delegation Determination," the guidelines for the payment of bonuses may also be included in the "Provisions, regulations, regulations, and established regulations, which are the matters of the president's decision of the president," and the reasons for the establishment of the defendant's guidelines to nullify.

D. Whether contract-based employees and the defendant's labor-management agreements or labor practices have been established

In full view of the purport of Gap evidence 10-2 through 5, Gap evidence 11 and 12, Gap evidence 13-1, 2, Gap evidence 14-1 and 4-4, the defendant did not pay a regular bonus to contract workers who worked less than 15 days during the base period although there are no provisions for the exclusion of regular bonuses to contract workers from the regulations for the operation of non-regular workers, the defendant did not pay a regular bonus to contract workers for less than 15 days during the base period; five out of 92 cases of not receiving a regular bonus from 209 to January 2014 (4 items, 1 case, 2012), five out of 92 cases of not receiving a regular bonus from contract workers for less than 20 years, 10-year collective agreement or 20-year collective agreement, 20-year demand for revision of the contract workers agreement, 20-year regular bonus and 20-year demand for two-year demand for change of the contract workers.

The facts acknowledged earlier and the following circumstances revealed in the argument in this case, i.e., ① non-regular workers are expected to receive a regular bonus due to the low possibility of continuous service rather than regular workers, and thus, it is difficult to view that the Defendant does not have any provision excluding the payment of a regular bonus to the contract-based workers, and that it is difficult to view that the Defendant would work as a regular bonus only for them, and ② Plaintiff P is difficult to give more attention to whether the regular bonus falls under the ordinary wage of the contract-based workers, among the fact that the Defendant recognized the actual normative power of the long-term high-term regular bonus payment method, it is difficult to find that the contract-based workers are paid a regular bonus only for 15 days during the standard period, and that there was an implied agreement or work practice among the union and the company.

E. Sub-committee

Under the premise that regular bonuses constitute ordinary wages, the plaintiffs' claims seeking the payment of additional legal allowances, retirement allowances, and retirement allowances between the defendant are without merit.

3. Determination on special bonuses

The plaintiffs asserts that the special bonus for 10th 2th 2th 2th 8th 2th 2th 2th 1st 2th 1st 2th 2th 1st 2th 1st 2th 2th 1st 2th 1st 2th 2th 1st 2th 1st 2th 2th 1st 2th 1st 2th 3th 1st 2th 1st 2th 2th 1st 2th 1st 2th 3th 1st 2th 1st 2th 1st 2th 1st 3th 1st 2th 1st 2th 3th 1st 2th 1st 2th 3th 1st 2th 3th 1st 2th 3th 2th 3th 3th 3th 1st 2th 3th 3th 1st 2th 2nd 3th 3th 2st 3th 3th 3th 2st 3th 2st 3th 2st 3th 2st 2st 3th 2st.

(1) In light of the following: (a) the Defendant has decided each year on whether to pay special bonuses through a resolution of the board of directors after considering the outcome of management for the purpose of boosting the morale of employees and raising awareness of their desire to work; (b) whether to pay special bonuses every year; (c) the name of special bonuses, its nature, and the status of payment, etc., of such special bonuses; (c) it is difficult to deem that the fixed rate of payment or amount of payment is fixed as wages; (b) the wages paid only to employees who are in office at the specific time of payment regardless of the fixed number of working hours, regardless of the fixed number of working hours; and (c) it is reasonable to determine whether to pay additional bonuses at the specific time of “work hours” or “the fixed number of working hours agreed by employees and employees at night”; (d) there is no need for the employer to pay additional bonuses at the specific time of work in proportion to the explicit number of working days; and (e) there is no need for the employer to provide them at the specific time of work.

Meanwhile, in light of the fact that Article 22 of the wage rules and Article 17 of the wage rules provide for the special bonus payment time and criteria separately, and that not only the payment of special bonus but also the decision of the person eligible for payment may be deemed to have been delegated to the defendant as well as the decision of the person eligible for payment, it is reasonable to deem that the special bonus does not apply to the previous regular bonus (paragraph 2(c) on November 20, 2014, the Supreme Court Decision 2013Gahap7073 Decided November 20, 2014 determined that the collective agreement and the rules of employment decided that the retirement should pay the bonus in proportion to the number of working days, but it is different from this case where the employee under his/her service should actually pay the bonus in proportion to the number of working days).

Under the premise that special bonuses constitute ordinary wages, the plaintiffs' claims seeking the payment of additional legal allowances, retirement allowances, and retirement allowances between them are without merit.

4. Determination on the assertion of double allowances additional charges

The plaintiff asserted for the payment of night, extension, and holiday work allowances before the conclusion of the oral argument at the trial. However, since regular bonuses and special bonuses constitute ordinary wages and the defendant's conjunctive assertion premised on the fact that the defendant has the right to pay street to the plaintiffs, as seen earlier, it is no longer reasonable to accept the main claim of the plaintiffs as seen earlier.

5. Conclusion

Therefore, all of the plaintiffs' claims in this case shall be dismissed due to the lack of reason. Since the judgment of the court of first instance partially different conclusions are unfair, the defendant's appeal is accepted and the part against the defendant in the judgment of the court of first instance is revoked and the plaintiffs' claim corresponding to that part is dismissed. The plaintiffs' appeal is dismissed due to the lack of reason, but all of the costs of the lawsuit shall be borne by the losing plaintiffs in full