[1] In a case where a transport company’s employee directly reverts to his/her individual income the excess taxi commission of the transport earnings, whether the excess earnings are included in the average wage that serves as the basis for the calculation of the retirement allowances (negative), and in a case where the transport company received the excess earnings together with the taxi commission and later paid them to its employees, whether the excess earnings are included in the above average wage (affirmative)

[2] The validity of the agreement in a case where the amount of retirement calculated by an agreement between labor and management, which does not provide the basis for the calculation of retirement allowances, to be included in the average wage, lowers the lower limit guaranteed by the former Labor Standards Act (negative)

[3] The case holding that in case where a transportation company's employee requests that the excess income received after payment to the company be included in the average wage at the time of retirement, the agreement that the company shall return 50% of the excess income received before shall be null and void as it violates Article 34 (1) of the former Labor Standards Act

[1] Articles 18 (see current Article 2 (1) 5), 19 (see current Article 2 (1) 6), and 34 (1) (see current Article 8 (1) of the Guarantee of Workers' Retirement Benefits Act) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) / [2] Article 34 (1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) (see current Article 8 (1) of the Guarantee of Workers' Retirement Benefits Act) / [3] Article 34 (1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) (see current Article 8 (1) of the Guarantee of Workers' Retirement Benefits Act)

[1] [2] Supreme Court Decision 2005Da25113 decided Jul. 12, 2007 (Gong2007Ha, 1233) / [1] Supreme Court Decision 2002Da4399 decided Aug. 23, 2002 (Gong2002Ha, 2207) Supreme Court Decision 2006Da42313 decided Nov. 9, 2006 / [2] Supreme Court Decision 2003Da40538 decided Dec. 11, 2003 (Gong2004Sang, 103)

Plaintiff (Public-service Advocates, Counsel for defendant-appellant)

Nakdongwon Transport Co., Ltd. (Seocho Law Firm, Attorney Park Sang-chul, Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2006Na25195, 25201 Decided April 19, 2007

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

1. As to the main claim

A. In addition to the payment of a certain amount by the number of actual working days per month by a transportation company to its employees, if the transportation company has left to freely dispose of the excess taxi commission (hereinafter “excess earnings”) out of daily transportation earnings with individual earnings of the operator, such excess earnings shall also be deemed as wages as remuneration for labor. However, even if the amount of wages are paid within the period for calculating average wages, the amount of excess earnings shall be excluded to the extent that the employer is able to manage or control the amount of the employee’s retirement allowances in order to ensure predictability in the employee’s contribution of retirement allowances. Thus, if the employee’s excess earnings directly accrue to his/her individual earnings, it shall not be included in the average wage, which is the basis for calculating the number of actual working days. However, if the transportation company received excess earnings from its employees later than the taxi commission, such excess earnings shall not be deemed as constituting the basis for calculating the amount of retirement allowances (see, e.g., Supreme Court Decision 200Da16329, Apr. 29, 2002).

After compiling the adopted evidence, the court below found the facts as stated in its reasoning, and determined that the excess earnings in this case should be included in the average wage, which is the basis for the calculation of retirement allowances of the plaintiff, even if the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") did not pay monthly excess earnings within the service period, and there was a difference in the amount of excess earnings monthly. The defendant also received the amount of actual transport income from the driver belonging to the plaintiff et al. without verifying the actual transport income through the operation record book attached to the taxi when he/she received excess earnings from the plaintiff et al., but paid in full. However, even if the excess earnings in this case were to be paid by the plaintiff et al., because the plaintiff were to be punished due to the taxi operation of the plaintiff, and as long as the defendant continued to receive more than 14 months prior to the retirement of the plaintiff from the plaintiff, the excess earnings in this case should be included in the calculation of the retirement allowances of the plaintiff.

In light of the above legal principles and records, the fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as violation of the rules of evidence or misapprehension of the legal principles as to excess earnings that should not be included in the average wage because there is no possibility of management and control by users as alleged in the grounds of appeal

B. Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005; hereinafter “the Act”) provides for the lower limit of the amount of retirement to be paid to the retired employee in light of the nature of the benefits to be paid to the retired employee. Thus, in a case where the employer and the employer agree not to make the benefits that may be included in the average wage under the Labor Standards Act on the basis of the calculation of the amount of retirement benefits, in view of the nature of the benefits, if the amount of retirement calculated by the agreement lowers the lower limit guaranteed by the above Act, such agreement is null and void as it violates Article 34(1) of the Act, which is a mandatory law (see Supreme Court Decision 2003Da40538, Dec. 11, 200

According to the records, under the wage agreement in 2004 which entered into with the labor union, the Defendant agreed to the effect that “the taxi commission shall be KRW 79,000 per day on board, KRW 90,000 per day, and KRW 90,000 shall not be included in the average wage at the time of retirement if an employee’s excess earnings accrue without paying such excess earnings to the company, and the excess earnings shall not be included in the average wage at the time of retirement. If the employee’s retirement payment after the payment of excess earnings to the company and then requests that the excess earnings be included in the average wage, the company collects 50% of the excess earnings from the employee and only the remainder as wages, and shall be included in the average wage.” Meanwhile, from November 2004 to October 205, the Plaintiff prepared and submitted a letter of agreement to the Defendant to the effect that “the excess earnings shall not be included in the average wage which serves as the basis for the calculation of the retirement allowances” under Article 14(1)3 of the Act, as it does not include the minimum amount of the average wages or the amount of the employee’s.

In the same purport, the court below is just and acceptable to reject the defendant's assertion that the part of the wage agreement in 2004 that half or all of the excess earnings shall not be included in the average wage and that the agreement submitted by the plaintiff to the defendant is null and void because it violates Article 34 of the Act, which is a mandatory law, and thus, the plaintiff agreed not to include the excess earnings in the average wage in the calculation of the retirement allowance, and the plaintiff submitted to the defendant each month a letter of agreement, and that such excess earnings shall not be included in the average wage, as the collective agreement between the defendant and the trade union (which appears to refer to the wage agreement in 2004) between the defendant and the trade union (which appears to refer to the above wage agreement in 2004) does not include the excess earnings in the average wage, and that the refusal of the effect of the collective agreement and the agreement by the plaintiff is contrary to the concept of justice, the letter of agreement, the principle of equity, or the principle of good faith.

2. As to the counterclaim

As seen above 1. B. (b) the Defendant entered into the wage agreement in 2004 between the labor union and the labor union, “ taxi commissions shall be KRW 79,000 per day on board, KRW 90,000 per day on day, and KRW 90,000, KRW 90,000 shall not be included in the average wage in calculating retirement allowances if the employee’s excess earnings accrue without paying to the company, and the employee’s excess earnings shall not be included in the average wage when the employee retires. If the employee requests that the excess earnings be included in the average wage after the payment to the company, the company should recover the excess earnings from the employee and recognize the remainder as only the amount as the wage, and include them in the average wage. However, the agreement cannot be deemed to be null and void as it constitutes a separate wage in light of the nature of the labor contract, and it cannot be deemed that the agreement is invalid for the company to return 50% of the excess earnings already paid to the employee to the company.”

However, the court below rejected the defendant's counterclaim claim that the plaintiff should return the above excess earnings to the defendant pursuant to the return agreement of 50%, based on the judgment below's reasoning that "if a worker demands the calculation of retirement allowances by including the excess earnings in the average wage, the purport of the above agreement shall be limited to the determination that the worker may refuse the worker's demand until recovering 50% of the excess earnings, and it shall not be stipulated in the defendant's active claim against the worker." Thus, as seen above, 50% of the excess earnings shall be deemed null and void because the above excess earnings are in violation of the mandatory law, the above return agreement shall be deemed null and void. Thus, the court below's determination that the defendant's right to refuse the payment of retirement allowances shall be the premise that the above return agreement is valid, and it shall not be a actively claiming the amount equivalent to 50% of the excess earnings. However, the court below's rejection of the defendant's counterclaim is justified, and there is no error in the misapprehension of legal principles as to the validity of the return agreement affecting the judgment.

3. Conclusion

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

Justices Kim Ji-hyung (Presiding Justice)