[1] Requirements for bonus to have the nature of wage, which is the basis of calculating average wage

[2] The method of calculating the amount of bonuses to be added to the wages, which are the basis for calculating the average wage, in a case where the grounds for calculating the average wage have occurred during the year when he was employed, and the amount of bonuses with the nature of wage is linked to variable basic wage according to the number of days of actual work, and it is not possible to predict the total amount of bonuses in the year concerned.

[1] If an employer’s money and valuables paid to an employee constitute wages that can be included in the total amount of wages that are the basis for calculating average wages, such money and valuables must be paid as wages to an employee (subject to work). In determining whether certain money and valuables were paid as wages to an employee, the occurrence of the obligation to pay money and valuables must be deemed directly related to the provision of labor or closely related thereto. However, whether the so-called bonus is of the nature of payment after the payment of wages, benefits, and the nature of reward cannot be uniformly classified. However, if the nominal bonus is paid continuously and regularly, not a fixed and temporary payment to an employee, but a fixed amount of payment is determined, it should be interpreted that the amount of bonus has the nature of wages paid as wages to an employee, which can be included in the total amount of wages that are the basis for calculating average wages.

[2] In a case where the grounds for calculating the average wage have occurred during the same year of entry, and the amount of bonuses is linked to variable basic wages depending on the number of actual working days, and it is not possible to predict the total amount of bonuses in the pertinent year, it is reasonable to calculate the accurate bonus of workers falling under the period for calculating the average wage by calculating the amount of bonuses actually received each quarter separately by the average wage calculation period, barring special circumstances.

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

[1] Supreme Court Decision 82Da1925 delivered on October 26, 1982 (Gong1983, 58), Supreme Court Decision 81Da1672 delivered on November 23, 1982 (Gong1983, 198), Supreme Court Decision 95Da19256 delivered on May 14, 1996 (Gong196Ha, 1837), Supreme Court Decision 97Da18936 delivered on January 20, 198 (Gong198, 561), Supreme Court Decision 201Da16722 delivered on June 11, 2002 (Gong202Ha, 1610)

Plaintiff

Korea Labor Welfare Corporation

Seoul High Court Decision 2000Nu4493 delivered on November 9, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the ground of appeal on the legitimacy of the instant lawsuit

According to the reasoning of the judgment of the court below, the court below, citing the reasoning of the judgment of the court of first instance, provides that with respect to the defendant's main defense of safety, "the extinctive prescription expires if the right to receive insurance benefits under this Act is not exercised for three years," and although the plaintiff has already filed an application for the correction of the average wage on March 9, 1994, as long as the individual claim for payment of pension has been continued, there is no time limit as to the application for the correction of the average wage, and it cannot be said that the application for correction has been rejected or partially accepted, and the specific right of the plaintiff cannot be deemed as extinguished by the extinctive prescription after all of the insurance benefits rights of the plaintiff were rejected. On the other hand, if the defendant refused the application for correction on July 1, 199, considering the contents and the situation of the defendant's refusal, it is reasonable to view that it constitutes a disposition under the Administrative Litigation Act that affects the plaintiff's rights and obligations or legal interests. Accordingly, this is therefore subject to appeal litigation.

2. As to the ground of appeal on the calculation method of average wages

If an employer intends to include money and valuables paid to an employee in the total amount of wages which are the basis for calculating average wages, such money and valuables must be paid as an employee eligible for work. In determining whether certain money and valuables are paid as an employee eligible for 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 (see Supreme Court Decisions 95Da19256 delivered on May 14, 1996), but it cannot be uniformly classified as whether the bonus is in the nature of post-paid payment or in the nature of beneficial and monetary reward. However, if the amount of bonus is continuously and regularly paid, and its amount is determined, it shall be interpreted that the amount of bonus has the nature of wages paid as an employee eligible for work, and it may be included in the total amount of wages which are the basis for calculating average wages (see Supreme Court Decisions 95Da19256 delivered on May 14, 1996; 200Da168198 delivered on December 16, 1982).

According to the reasoning of the judgment of the court below and the records, with respect to bonuses under the collective agreement and the rules on bonus payment by ○○○ (hereinafter referred to as “non-party company”), “the company shall pay 520% bonus to all its employees annually, and the method of payment shall be four times a year, but with respect to the period from January 1 to March 31 (1/4 quarter) for the three-month wage, the period of service shall be from April 1 to June 31 (2/4 quarter), and the period of service shall be from September 1 to September 31 (3/4 quarter), and the fact that the company has received the above quarterly wage for the period from September 1 to September 31, 10, to December 31, 199, the company shall be deemed to have received the above quarterly wage for the period of service from October 1 to December 31, 199 to December 24, 192. Meanwhile, the plaintiff shall be deemed to have established the amount of monthly bonus for the same period of service from February 14 to 316/6.4th of the same year.

Furthermore, according to the records, as to the method of calculating the average wage for the plaintiff, the non-party company entered the non-party company on February 22, 1992 and worked at the △△△△△△△, the non-party company calculated the plaintiff's daily average wage as 29,704.44 won on the basis of only the remaining wages except the above bonuses when calculating the average wage for calculating the industrial accident compensation insurance benefits for the plaintiff, but partly accepted the plaintiff's corrective request that the bonus actually received by the plaintiff should be included in the average wage. The plaintiff recognized only 150,110 won among the bonuses actually received as the basis of calculating the average wage as 31,36.07 won, and determined the average wage as 31,36.07 won. Meanwhile, according to the evidence of evidence No. 3 (average Wage Calculation Details) of the same year, the non-party company calculated the above average wage as 150,10 won during the same period from 20th day to 16th day to 24th day to 196th day to 26th day.

However, the same calculation method is just based on the average wage for not less than three months, but it is reasonable for the plaintiff's basic purpose. However, in calculating the bonus for that three-month period x 206,651 won for the first 9-day period from February 22, 1992 to March 31 of the same year, 206-day bonuses shall be calculated based on the same 4-day period as 4-day wages for 4 months from February 22, 192 to June 26 of the same year. 196-day, 2. 3-day bonuses from the same 4-day period to 4-day, 3-day average wages for less than 4-day and 9-day, 3-day bonuses from the same 4-day period to the same 4-day period, and 9-day bonuses from the same 9-day period to the same 4-day period to the same 9-day period, unless there is any special reason otherwise for the plaintiff's calculation.

Therefore, since the non-party company's average wage, which is the basis of the company's calculation of the disadvantage against the plaintiff as a result of under-approval of the bonus, it should be corrected. However, the defendant's disposition rejecting the plaintiff's request for correction is unlawful, and although the judgment of the court below is inadequate, it is justifiable in its conclusion that the disposition of this case is unlawful, so there is no error of law such as misunderstanding of legal principles as to the average wage which affected the result of the judgment as alleged in the judgment below, and the Supreme Court precedents cited in the

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)