Plaintiff (Law Firm Pump, Attorneys Park Sung-sung et al., Counsel for plaintiff-appellant)

Korea Labor Welfare Corporation

July 16, 2014

1. On March 20, 2012, the Defendant’s disposition of paying the insurance benefits price difference to the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 5, 2007, the Plaintiff’s deceased Nonparty (hereinafter “the deceased Nonparty”) joined the Korea Appraisal Board Co., Ltd. (hereinafter “Nonindicted Company”) and died from occupational accidents on November 8, 2008. The Defendant considered the deceased’s average wage as KRW 92,800.42, and paid the Plaintiff’s bereaved family benefits and funeral expenses.

B. On February 7, 2012, when calculating the above average wage to the Defendant, the Plaintiff filed a claim for the correction of the average wage and the difference in the amount of insurance benefits, if the Plaintiff omitted performance bonuses, ② self-driving subsidies, and ③ family support expenses.

On March 20, 2012, the Defendant rejected the claim against the Plaintiff on the ground that “(i) performance bonus is money and other valuables paid according to the evaluation of the management performance of the company, not included in the calculation of average wage; (ii) self-driving subsidy is not recognized as remuneration for work; and (iii) household subsidies are already included in the calculation of average wage (hereinafter “instant disposition”).

C. The Plaintiff filed a request for review with the Defendant regarding the instant disposition, and the Defendant partially revoked the instant disposition on June 15, 2012, stating that “(2) self-driving subsidies should be included in the calculation of average wages.”

[Ground of recognition] Unsatisfy, Gap 1 and 2 evidence

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 32(2) of the Regulations on Remuneration related to Bonuses of the non-party company provides that “150% of the performance bonus shall be paid on the first business day of February, and the remaining performance bonus shall be paid differently according to the previous year’s performance within 30 days from the date of publication of the result of management evaluation under Article 11 of the Framework Act on the Management of Government-Funded Institutions.” Accordingly, the non-party company paid to the deceased 2,068,500 won for performance bonus equivalent to 150% of the base salary and position allowance on February 1, 2008, and 2,931,000 won for the remaining performance bonus on July 16, 2008. The non-party company has also paid the above performance bonus to other employees on February and July of each year in accordance with the above provision.

2) As such, performance bonus for February is paid periodically, continuously and uniformly to all workers regardless of the result of management evaluation by the company as the conditions, timing, and rate of payment are set in the rules of employment of the non-party company (the rules of remuneration), and such bonus constitutes wages as remuneration for work. In addition, even though the payment rate has not been set in advance, if the same rate of payment has been set for all employees based on the special and incidental circumstances of the non-party company, not temporary pay, but for each year, based on the management performance of the non-party company, the non-party company must be included in the calculation of average wage (However, since the above self-driving subsidy and the household subsidy were already recognized, no dispute is raised over this lawsuit).

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

In full view of the above evidence evidence evidence Nos. 4 through 8, evidence Nos. 1 through 3, and the whole purport of the argument as to the non-party company in this court's fact inquiry, the following facts can be acknowledged.

1) The remuneration regulations concerning bonuses of the non-party company, which was enforced at the time of the death of the deceased, are as follows.

본문내 포함된 표 ▣ 보수규정(2007. 12. 7. 개정, 2008. 1. 1.부터 시행) 제32조(상여금의 지급) ① 기본상여금 연 300%는 3월, 9월, 12월 첫 영업일에 각 100%씩 지급한다. ② 성과상여금 중 150%는 2월 첫 영업일에 지급하며, 잔여 성과상여금은 정부산하기관 관리기본법 제11조의 규정에 의한 경영평가 결과가 공표된 날로부터 30일 이내에 전년도 성과에 따라 차등 지급한다. ③ 특별상여금은 경영성과에 따라 이사회 내 운영위원회의 결의를 거쳐 지급할 수 있다. 제33조(지급대상 및 기준) ① 상여금은 지급일 현재 근무 중인 자에 대하여 지급한다. 다만, 복직자(업무상 인병휴직으로 인한 복직자는 제외) 및 신규 입사자에 대하여는 다음 각 호를 적용하여 지급한다. 1. 1개월 이하 근무한 자는 지급하지 아니한다. 2. 1개월 초과 2개월 이하 근무한 자는 3분의 2를 지급한다. 3. 2개월 초과 근무한 자는 전액을 지급한다. ② 상여금은 지급일 현재 기준봉급과 직책수당의 합계액에 지급률을 곱한 금액으로 한다. ③ 잔여 성과상여금의 지급대상 및 기준 등 구체적 사항은 경영계획 및 평가규정 제19조의 규정에 의한 내부경영평가편람에 따른다.

2) In addition to the basic bonus, the non-party company paid 2,068,50 won for performance bonus on February 1, 2008, and 2,931,000 won for the remaining performance bonus on July 16, 2008. On November 8, 2008, the average wage was calculated as KRW 106,698, including both the performance bonus paid after the death of the deceased.

3) The remaining performance bonus against the deceased is determined by applying 212.50% of the payment rate determined by reflecting the actual service period of the deceased again in the result of the evaluation of the management performance in 2007 for the non-party company (the 398.1%) and the evaluation of the internal management performance of the company itself (298.3%).

(d) Markets:

1) Survivors’ benefits and funeral expenses under the Industrial Accident Compensation Insurance Act are calculated on the basis of the deceased’s average wage (Article 62(2), attached Table 3, and Article 71 of the Industrial Accident Compensation Insurance Act), and average wage under the Industrial Accident Compensation Insurance Act refers to average wage under the Industrial Accident Compensation Insurance Act (Article 5 subparag. 2 of the Industrial Accident Compensation Insurance Act). Article 2(1)6 of the Labor Standards Act provides that “average wage” refers to the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the date on which a cause for calculating the amount arises

The above average wages are the basis for calculating various allowances, such as retirement allowances for workers, and the purport of the relevant provisions of the Labor Standards Act regarding the above allowances is to guarantee workers’ livelihood. As such, the basic principle of the calculation is to accurately calculate the ordinary living wages of workers, and such basic principle is to equally interpret the average wages as the basis for calculating various insurance benefits under the Industrial Accident Compensation Insurance Act (see Supreme Court Decision 90Nu2772 delivered on April 26, 191).

Specifically, in order for money and valuables to be paid to an employee to constitute the total amount of wages which can be included in the calculation of average wages, such money and valuables should be paid as an object of work. In determining whether certain money and valuables are paid as an object of work, the occurrence of the obligation to pay money and valuables must be deemed directly related to the provision of work or closely related thereto. Whether so-called bonus is of the nature of payment of wages, benefits, and the nature of reward cannot be uniformly classified. However, if the amount of bonus is continuously and regularly paid and its amount is confirmed not to be a fixed and temporary payment to an employee, it can be included in the total amount of wages which are the basis of the calculation of average wages (see Supreme Court Decision 200Du9717, Oct. 25, 2002). Furthermore, even if the amount of payment is not determined in advance, it is recognized that the bonus is continuously paid to an employee for a certain period of work, and if it is determined that the amount of bonus is the object of payment of the bonus in question, it should be determined as a specific period of payment.

2) In light of the above legal principles, the performance bonus paid to the deceased on February 1, 2008 is clearly defined in the remuneration regulations for the non-party company. The remaining performance bonus as of July 16, 2008 clearly stipulated in the remuneration regulations, payment period and payment period, and conditions for determination of the amount. The non-party company actually paid performance bonus regularly and continuously to workers employed during the evaluation period under the above provision. In light of the above legal principles, the performance bonus constitutes the wage subject to calculation of the average wage of the deceased (the average wage of the deceased should be calculated separately by dividing the total amount of the wages paid to the worker for the three months before the date on which the cause for calculation thereof arises as of the above legal provision. As such, with respect to the performance bonus paid twice per year by the deceased on the basis of the total number of days during the said three-month period, it shall be deemed that the amount actually paid for the year immediately before the death of the deceased was 4,99,500 won (the above performance bonus paid on July 16, 2008).

Therefore, the defendant's disposition of this case from a different premise is unlawful.

3. Conclusion

Ultimately, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Park Jong-chul

(1) The Seoul Administrative Court Decision 2008Guhap6622 decided October 24, 2008; and Supreme Court Decision 2009Du13627 Decided January 27, 2012, which is the final appeal, recognized the wage of performance bonus as a result of the performance evaluation of the public institution’s business performance.