[1] In a case where an operator of a transportation company has made a balance after deducting taxi commission out of transportation earnings as an individual's income, whether such excess taxi commission's income constitutes wages (affirmative), and whether such excess amount's income is included in the average wage, which serves as the basis for the calculation of retirement allowances (affirmative)

[2] Whether the average wage, which serves as the basis for the calculation of a retirement allowance, is limited to the part that an employer can manage or control the total income earned by an employee (affirmative), and whether the excess taxi commission is included in the average wage that serves as the basis for the calculation of a retirement allowance in cases where an operator of a transportation company directly reverts the excess taxi commission to his/her individual income (negative)

[3] In a case where an operator of a transportation company pays a transportation company a portion exceeding the taxi commission out of the transportation income, and then receives another payment from the transportation company, whether the excess taxi commission is included in the average wage, which serves as the basis for calculating the amount of retirement pay (affirmative)

[1] In addition to paying a certain amount according to the number of actual working days each month to the drivers under his/her jurisdiction, if a transportation company has left the balance after deducting a certain amount of taxi commission to be paid to the company out of daily transportation earnings in consideration of the unique characteristics of the work form and the convenience of calculation, the part that constitutes an individual's income and thus constitutes wages, which are the basis of the calculation of retirement allowances, in light of its nature. Thus, the excess amount of taxi commission shall be included in the average wage, which is the basis of the calculation of retirement allowances, barring

[2] Even if wages are paid within the calculation period of average wages, in calculating the amount of average wages that serves as the basis for the calculation of the amount of retirement allowances, the employee’s individual income does not constitute the average wage, which is the basis for the calculation of the amount of retirement allowances, in order to ensure predictability in the employee’s payment of retirement allowances. Thus, in cases where the employee directly reverts the amount of excess taxi commission to the employee’s individual income, whether the individual income accrued or the scope of the amount is not specified, and thus, it is difficult for the transportation company to find out that the individual income portion of the employee’s individual income is not included in the amount of average wages, which is the basis for the calculation

[3] In a case where a worker of a transportation company pays total transportation earnings to a transportation company as a whole, unlike the case where the worker directly reverts the excess taxi commission to his/her own individual himself/herself, the transportation company can clearly confirm and specify whether the excess taxi commission occurred and the scope of the amount, and thereby manage and control over the excess taxi commission, and it is not different from the fact that the transportation company subsequently paid the worker the amount of money equivalent to the excess taxi commission paid to the worker. Thus, the excess of the taxi commission paid by the worker shall be deemed to be included in the average wage, which serves as the basis for the calculation of the amount of retirement allowances.

[1] Articles 18, 19, and 34 of the Labor Standards Act / [2] Articles 18, 19, and 34 of the Labor Standards Act / [3] Articles 18, 19, and 34 of the Labor Standards Act

[1] Supreme Court Decision 91Da36192 delivered on December 24, 1993 (Gong1994Sang, 494), Supreme Court Decision 98Du15269 delivered on April 25, 200 (Gong2000Sang, 1323), Supreme Court Decision 95Da573 delivered on March 13, 1998 (Gong198Sang, 104), Supreme Court Decision 98Da18568 delivered on April 23, 199 (Gong199, 992)

Plaintiff 1 and nine others (Law Firm Consolidated Law Office, Attorney Kim Nam-nam, Counsel for the plaintiff-appellant)

Geum River Transportation Corporation

Suwon District Court Decision 2001Na1499 delivered on November 30, 2001

The part of the judgment of the court below against plaintiffs 3, 4, and 10 and the part against plaintiffs 2, 5, 6, 7, and 8 shall be reversed, and this part of the case shall be remanded to the Suwon District Court Panel Division. Each appeal by plaintiffs 1 and 9 shall be dismissed. The costs of appeal between plaintiffs 1, 9, and the defendant shall be borne by the above plaintiffs.

1. Judgment on the grounds of appeal by the rest of the plaintiffs except the plaintiffs 1 and 9 (hereinafter referred to as the "Synas"),

A. According to the reasoning of the judgment below, since Article 22(1) and Article 28(2) of the Specialized Passenger Transport Service Act (amended by Act No. 5448, Dec. 13, 1997; hereinafter “passenger transport business entity shall receive transport earnings in full, and its employees shall pay the total amount of transport earnings to the passenger transport business entity.” Since the system of taxi commission was abolished in relation to taxi transport business and the system of total management of taxi earnings was established as a policy of the Government, the Defendant company and the Defendant company’s labor union were required to enter into an agreement on new salary schemes. The Defendant company attempted to implement the system of total management of taxi earnings from February 13, 1998, and it did not include the remaining amount of monthly wage from 70,000,000,000 won for more than 9,000 won, and it did not include the Plaintiff Company’s total monthly wage from 97,000,000 won for more than 9,000 won.

B. However, it is difficult to accept the fact-finding and judgment of the court below in the following respect.

First, according to the records (in particular, the statement of evidence No. 27, the witness Non-party 1, and Non-party 2's testimony) and the defendant company attempted to implement the total management system of taxi transport earnings from February 1, 1998 to February 24, 1998, and received excess taxi commission from the employees of the defendant company, including plaintiffs 2, 3, 4, and 5, from February 1, 1998 (the defendant company is also the person of each preparatory document dated August 21, 200 and December 4, 200). However, the court below erred in the misapprehension of the rules of evidence by pointing out that the above plaintiffs' excess taxi commission should not be included in the average wage, which is the basis for calculation of retirement allowances, since they did not have paid excess taxi commission to the defendant company. Thus, the defendant company's assertion that the excess taxi commission should not be included in the average wage, which is the basis for calculation of retirement allowances, should not be justified.

Next, in addition to paying a certain amount according to the number of actual working days each month to the drivers under his/her jurisdiction, if a transportation company has left the balance after deducting a certain amount of taxi commission paid to the company out of daily transportation earnings as the individual's income, taking into account the unique characteristics of his/her work form and the convenience of calculation, etc., the part that constitutes the individual's income also constitutes the wage which is the basis for the calculation of retirement allowances, considering the nature of the part that constitutes the individual's income (see, e.g., Supreme Court Decisions 87Meu570, Mar. 22, 198; 91Da36192, Dec. 24, 1993). The excess amount of taxi commissions shall be included in the average wage that serves as the basis for the calculation of retirement allowances,

However, even if wages are paid within the period for calculating the average wage, the part of the average wage, which serves as the basis for calculating the amount of retirement pay, should be excluded from the amount that can be managed or controlled by the employer in order to ensure predictability in the employee’s payment of retirement pay, and where the employee directly reverts to the employee’s own income, the employee’s payment of excess taxi commission should be determined, and as such, the existence of the portion of the individual’s income or the scope of the amount is not specified, and there is no possibility of management or control thereof. Therefore, the employee’s personal income does not constitute the average wage which is the basis for calculating the amount of retirement pay (see, e.g., Supreme Court Decisions 95Da5733, Mar. 13, 1998; 98Da18568, Apr. 23, 199). If the employee’s total amount of average wage is paid to the Defendant company, it should be deemed that the employee’s payment of excess taxi commission should be clearly determined from the employee’s payment of excess taxi commission.

Nevertheless, the court below's rejection of the above plaintiffs' claims on the ground that the excess taxi commission should not be included in the average wage, which is the basis for the calculation of retirement allowances, and it does not constitute an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles as to retirement allowances. Therefore, the ground of appeal pointing this out

2. Determination on the claims by Plaintiffs 1 and 9

No grounds of appeal are stated in the appellate brief or petition of appeal filed by the above plaintiffs.

3. Therefore, the part of the judgment of the court below against plaintiffs 3, 4, and 10 and the part against them by plaintiffs 2, 5, 6, 7, and 8 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. Each appeal by plaintiffs 1 and 9 shall be dismissed, and the cost of appeal between plaintiffs 1, 9, and the defendant shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)