The method of calculating the average wage in case of occupational injury while performing overtime work on the first day of employment;

In a case where a worker was injured while working in the non-party company on the first day after the worker entered the office in the non-party company, the average wage is the basis for calculating various benefits for the worker, and the purport of the above provisions on allowances and compensations is to guarantee the worker's livelihood. As such, the average wage is the basic principle of calculating the ordinary living wage of the worker. This is the same as the average wage as the standard for calculating various insurance benefits under the Industrial Accident Compensation Insurance Act. Thus, if it is impossible to calculate the average wage pursuant to the Labor Standards Act and the Enforcement Decree of the same Act, the average wage of the ordinary workers who are engaged in the same kind of work in the region where the worker is working should be based on the standard amount of the average wage of the worker who is engaged in the same kind of work in the same manner.

Article 19 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997); Articles 2, 3, 4, and 5 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997); Article 4 subparag. 2, and Article 41 of the Industrial Accident Compensation Insurance Act

Supreme Court Decision 90Nu2772 delivered on April 26, 1991 (Gong1991, 1524) Supreme Court Decision 93Nu14936 delivered on December 28, 1993

Plaintiff

Korea Labor Welfare Corporation

Seoul High Court Decision 97Gu8214 delivered on July 24, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Article 41 of the Industrial Accident Compensation Insurance Act provides that temporary disability compensation benefits shall be paid for the period of non-employment due to medical care, and the daily amount of payment shall be the amount equivalent to 70/100 of the average wage. The main sentence of Article 4 subparagraph 2 of the same Act provides that the average wage means the average wage under the Labor Standards Act, and the proviso provides that where it is deemed difficult to determine the average wage under the Labor Standards Act, the amount determined and publicly notified by the Minister of Labor shall be the average wage concerned. Meanwhile, Article 19 (1) of the Labor Standards Act provides that the average wage in this Act means the amount calculated by dividing the total amount of wages paid to the worker during the three months prior to the date on which the cause for calculation occurs by the total number of days during the three months prior to the date of employment, and Article 5 of the Enforcement Decree of the same Act provides that the average wage cannot be calculated pursuant

According to the reasoning of the judgment below, since the plaintiff's total number of working hours is 0 days per day before the above 3-day ordinary wages and 196-day average wages are considerably less than 10 days per day, the court below determined that the above 3-day ordinary wages are more than 10 days per day per day, and that the above 3-day ordinary wages are less than 3-day average wages per day per day (the above 4-day average wages per day are less than 10 days per day) and that the above 3-day ordinary wages are less than 10-day average wages per day per day, it is difficult to determine that the above 3-day average wages per day are less than 5-day average wages per day per day (the above 10-day average wages per day are less than 20-day average wages per day) and the above 10-day average wages per day are less than 30-day average wages per day after the above 10-day average wages per day are calculated.

Article 5 of the former Enforcement Decree of the Labor Standards Act (amended by the Presidential Decree No. 15320, Mar. 27, 1997) provides that if it is impossible to calculate the average wage under Article 19 of the same Act and Articles 2 through 4 of the Enforcement Decree of the same Act, the amount shall be determined by the Minister of Labor. The proviso of Article 4 subparagraph 2 of the Industrial Accident Compensation Insurance Act provides that if it is difficult to determine the wage or average wage under the Labor Standards Act, the amount determined and publicly notified separately by the Minister of Labor shall be the relevant wage or average wage. Since the above provisions have not been enforced until now, there is no way to calculate the plaintiff's average wage under the premise that it is not possible to calculate the amount of average wage, i.e., retirement allowance (Article 28 of the Labor Standards Act), annual paid leave allowance (Article 38 of the same Act), disability compensation (Article 79 of the same Act), and Article 2 through 4 of the same Act, the average wage shall be calculated based on the average wage of the same kind of workers concerned.

Therefore, the court below should have determined the amount of the plaintiff's average wage by examining the amount of the worker's average wage engaged in work of the same kind and degree as the plaintiff's work, and accordingly, should have determined the amount of the plaintiff's average wage by determining whether the defendant's disposition was legitimate, although the court below did not reach such determination, it did not err in the misapprehension of legal principles as to the average wage and by failing to exhaust all deliberations, thereby affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)