[1] Whether a present public official, etc. may seek payment of overtime work allowances corresponding to the actual overtime work hours under an order of service (affirmative in principle), and whether the guidelines for handling the former local public official’s remuneration work, etc. are the same as the case where a present public official, etc. provides that the monthly payment of overtime work hours shall be determined as “within the scope of budget” for the present person, or the case where a local government organized overtime work allowances in the budget so that it falls short of the actual overtime work

[2] In a case where a provision of a statute grants a specific administrative agency the authority to determine the specific matters of the statute, without specifying the procedure or method of exercising the authority, and thus an administrative agency specifically determines the matters to be the content of the statute in the form of administrative rules, whether the administrative rule has the effect as an external binding legal order (affirmative in principle), and in such a case, the method of determining whether the specific administrative rule complies with the limit of delegation

[3] The meaning of working hours and recess hours, and the method of determining whether the break time or WIG hours under a labor contract belong to work hours or recess hours

[1] Articles 44(3) and 45(1) of the former Local Public Officials Act (Amended by Act No. 8396, Apr. 27, 2007; see current Article 44(4)); Article 30 of the Local Public Officials Remuneration Regulations; Articles 15, 16, and 17 of the former Regulations on Allowances, etc. for Local Public Officials (Amended by Presidential Decree No. 22620, Jan. 10, 201); Article 36(1) of the former Local Finance Act (Amended by Act No. 10991, Aug. 4, 201); Article 5 of the Local Public Officials Service Regulations / [2] Article 95 of the Constitution of the Republic of Korea / [3] Articles 50 and 54 of the Labor Standards Act

[1] [2] [3] Supreme Court Decision 2014Du3020, 3037 decided Oct. 17, 2019 (Gong2019Ha, 2119) / [1] Supreme Court Decision 2005Da9227 decided Sept. 10, 2009 (Gong2009Ha, 1595) Supreme Court Decision 2013Du14610 decided Aug. 25, 2016 (Gong206Ha, 1430) / [2] Supreme Court Decision 2006Du3742, 3759 decided Oct. 27, 201 (Gong208Sang, 623) / [1] Supreme Court Decision 201Du154610 decided Oct. 27, 2015; 201Du20154165 decided Oct. 27, 2011 (Gong2015Du2016365147Du165146575165)

See Attached List of Plaintiffs (Law Firm Samil, Attorneys Lee Gyeong-hee et al., Counsel for the plaintiff-appellant)

Jeju Special Self-Governing Province and two others (Law Firm Governing Province, Attorneys Dog-jin et al., Counsel for the plaintiff-appellant)

Gwangju High Court ( Jeju) Decision 2012Nu661 Decided January 23, 2013

Of the part of the lower judgment against the Defendants, the part concerning the claim for overtime work allowance for the hours during which the holiday work allowance is paid is reversed, and that part of the case is remanded to the Gwangju High Court. The Plaintiffs’ appeals and the remaining appeals by the Defendants are all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ grounds of appeal

A. As to the grounds of appeal Nos. 1, 2, and 7

1) Article 44(3) of the former Local Public Officials Act (amended by Act No. 8396, Apr. 27, 2007) provides that “No money or valuables may be paid as remuneration for public officials unless otherwise prescribed by this Act or other Acts and subordinate statutes.” Article 45(1) provides that “matters concerning the remuneration of public officials shall be prescribed by the Presidential Decree.” Based on the provision, Article 30 of the former Local Public Officials Remuneration Regulations provides that public officials may be paid necessary allowances in addition to their salaries within budgetary limits, and the types, scope of payment, payment, and other matters necessary for the payment of allowances shall be prescribed separately by the Presidential Decree; Article 14(3) of the former Local Public Officials Act provides that public officials shall be provided with the remuneration system of local public officials during night work hours; Article 15(1) of the Local Public Officials Act provides that public officials who work for more than those prescribed by the Ordinance of the Ministry of Finance and Economy shall be provided with the remuneration system of public officials during night work hours; Article 16(4) of the former Local Public Officials Act provides that public officials shall be provided with the allowance for more than those who work hours during night work hours.

In full view of the relevant statutes and regulations, allowances for local public officials are set by the statutes. As long as excess allowances, such as overtime work hours, night work hours, and holiday work allowances, are appropriated in the budget, local public officials, etc. prescribed in Article 5 of the Local Public Officials Service Regulations may seek payment of overtime work allowances equivalent to actual overtime work hours under the order of service (see, e.g., Supreme Court Decisions 2005Da9227, Sept. 10, 2009; 2013Du14610, Aug. 25, 2016). Accordingly, pursuant to the delegation of Article 15 of the aforementioned Regulations, the former Guidelines for Handling of Allowances for Local Public Officials, etc. (Abolition of the Guidelines for Handling of Remuneration of Local Public Officials, etc. established by the Ministry of Public Administration and Security on February 4, 2009) or the Guidelines for Handling of Remuneration of Local Public Officials, etc. (hereinafter referred to as “instant Guidelines”) or the Guidelines for Handling of Allowances for Persons subject to overtime work hours, etc. are not included in the budget.

2) The lower court, based on the legal doctrine as indicated in its holding, determined that the Defendants are obliged to pay reasonable overtime work allowances for the Plaintiffs during the actual hours regardless of the scope of their budget compiled.

Examining the reasoning of the judgment below in light of the legal principles as seen earlier, although the court below partially inappropriate part of the reasoning of the court below, such conclusion of the court below is just and acceptable. In so doing, contrary to the allegations in the grounds of appeal, the court below did not exhaust all necessary deliberations or did not err by misapprehending the legal principles on the meaning and scope of delegation under Article 15 of the Rules

B. As to the grounds of appeal Nos. 3 and 7

1) The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency with guidelines for the performance of duties or guidelines for the interpretation and application of statutes, are generally effective only within the administrative organization and do not have external binding force. However, if a provision of statutes grants authority to determine specific matters of the statutes to a specific administrative agency and does not specify the procedure or method of exercising such authority in the form of administrative rules, the delegated administrative agency specifically determines matters that are the contents of the statutes in the form of administrative rules, such administrative rules do not have the general effect of the above administrative rules, but have the function to supplement the contents of the statutes in accordance with the validity of the provisions that grants authority to supplement the specific contents of the statutes to the administrative agency. Therefore, unless such administrative rules do not go beyond the bounds of delegation of the pertinent statutes, they have the effect of an external binding order (see, e.g., Supreme Court Decision 2006Du3742, 3759, Mar. 27, 2008).

2) The instant provision provides that overtime work allowances (Article 15(2) shall be paid for each hour during which overtime work is performed, and night work allowances (Article 16(2)) shall be paid for each hour during which overtime work is performed, and night work allowances (Article 16(2)) shall be paid for each hour during which night work is conducted, on the basis of 1/226 of the base salary. On the other hand, the said provision provides that overtime work allowances shall be paid by calculating 15/30 of the base salary as 1st day of the holiday work, on the basis of 1st day of the holiday work (Article 17(2)).

Considering the aforementioned calculation unit and method of overtime work allowance, night work allowance, and holiday work allowance and their premium rate under the instant provision, it is reasonable to deem that the instant provision does not stipulate that overtime work allowance and holiday work allowance will not be paid in duplicate with respect to overtime work. Therefore, prohibiting the payment of overtime work allowance and holiday work allowance for the same working hours, which are delegated by Article 15, etc. of the instant provision, is merely an expression or specification possible in the interpretation of the instant provision, and thus, cannot be deemed as deviating from the delegation scope, and ultimately, it is effective as an external binding legal order.

3) Nevertheless, the lower court deemed that the instant provision delegated administrative legislation only with the procedural matters necessary for the payment criteria and payment method of excess work allowances, and determined that the statutory nature cannot be recognized with respect to the restriction on overtime work allowances and sick work allowances, thereby accepting the Plaintiffs’ claim seeking duplicate payment of overtime work allowances for the hours during which overtime work allowances are paid.

In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of Articles 15(2) and 17(2) of the instant provision and the validity of the instant guidelines as an statutory order, thereby adversely affecting the conclusion of the judgment. The Defendants’ ground of appeal assigning this error is with merit.

C. As to grounds of appeal Nos. 4 and 7

1) The term “working hours” means the hours during which an employee provides labor under the employer’s direction and supervision. Recess hours refer to the hours for which an employee may freely use by harming the employer’s direction and supervision during working hours. Therefore, even if an employee does not actually engage in work during working hours, or during working hours, if an employee is under the employer’s direction and supervision, not free use, but is actually under the employer’s direction and supervision, it should be considered as working hours. Determination is not uniformly based on the contents of an employment contract, the rules of employment and collective agreement applicable to the relevant workplace, the details of the work provided by the employee, whether the employee interferes with or supervises the employee, whether the employee was equipped with a place for temporary rest, and whether the employee interferes with or supervises the actual rest, and the extent of such circumstances, etc. (see, e.g., Supreme Court Decision 201Da4754, Dec. 25, 2017).

2) In light of the circumstances stated in its holding, the lower court determined that it is reasonable to view that the Plaintiffs’ night time and meal hours are included in working hours as hours under actual business direction and supervision.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the calculation

D. Regarding ground of appeal No. 5

The lower court determined that the premium rate under the instant guidelines is stipulated for general subjects, and that the provision on general subjects cannot be applied or analogically applied to those who are engaged in the present business without any legal basis, in light of the difference between the scope of recognition and calculation method of excess work allowances for general subjects and those who are currently engaged in the present business.

Examining the reasoning of the lower judgment in light of relevant provisions and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the adjustment of the premium rate, contrary to what is alleged in the grounds of appeal.

E. Regarding ground of appeal No. 6

The lower court, on the grounds of the circumstances indicated in its reasoning, rejected the Defendants’ assertion that the Plaintiffs were actually working on a non-day as much as the hours based on the details of travel expenses paid to the Plaintiffs, barring special circumstances to deem that the Plaintiffs did not work on a non-day basis, and that the Plaintiffs were actually working on a non-day basis according to the official order of their superior officers, and that the Plaintiffs should be excluded from the non-day working hours if there is no indication of the order

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the burden of proof.

2. Regarding the plaintiffs' grounds of appeal

The court below rejected the other plaintiffs' assertion on this part, on the ground that the number of non-permanent fire officers in the second class and the second class and the second class and the second class and the second class and the second class and the second class and the second class and the first class and the second class and the second class and the second class and the second class and the second class and the second class and the second class and the second class and the second class and the second class cannot

Examining the reasoning of the lower judgment in light of the relevant provisions and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the nature of kick duty and the calculation of hours worked by the present employees.

3. Conclusion

Therefore, among the part of the judgment below against the Defendants, the part concerning the claim for overtime work allowance for the hours during which the holiday work allowance was paid is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiffs' appeal and the remaining appeals by the Defendants are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kwon Soon-il (Presiding Justice)