[1] The case holding that the wage cannot be calculated on the basis of the minimum amount of excess of the revenue recognized by the data on the deposit of transport revenue of taxi drivers on the ground that the payment of benefits to the taxi engineer was implemented under the full amount management system of transport revenue in the form and actually maintained the previous taxi commission scheme

[2] The case holding that in calculating the wages of taxi drivers of a transportation company where the taxi commission scheme was practically implemented, the calculation of wages cannot be made by applying the statistical income under the statistical survey report on the basic statistical survey of the wage structure merely on the ground that no data exists to identify the actual income

[1] The case holding that the wage cannot be calculated on the basis of the minimum amount of taxi earnings exceeding the minimum amount of taxi earnings recognized by the data on deposits in transport of taxi drivers on the ground that the payment of benefits to taxi engineers was implemented under the full amount management system of transport earnings in the form and actually maintained the previous taxi commission scheme

[2] The case holding that in calculating the wages of taxi drivers of a transportation company where the taxi commission scheme was practically implemented, the calculation of wages cannot be made by applying the statistical income under the statistical survey report on the basic statistical survey on the wage structure for the reason that no data exists to identify the actual income

[1] Article 18 of the Labor Standards Act, Article 22 (1) of the Passenger Transport Service Act / [2] Articles 18 and 19 of the Labor Standards Act

Plaintiff

Defendant Co., Ltd. (Attorney Lee Dong-min et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na51257 delivered on April 29, 2004

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

1. The lower court’s recognition and judgment

According to the reasoning of the judgment below, the court below acknowledged that the defendant company implemented the total amount management system after compiling the adopted evidence, i.e., whether the defendant company pays the total amount of transportation revenue, even if the defendant company implemented the total amount management system of transportation revenue, based on the autonomous judgment of the taxi engineer in terms of the characteristics of the taxi engineer's work form and the nature of excess transportation revenue, and even if the number of monthly work days is less than the average monthly work days in the report on the basic statistical survey of the wage structure, the plaintiff's income calculated by adding the basic salary and the allowances to the above monthly work wages to the defendant company is too small compared to the average monthly work days in the report on the basic statistical survey of the wage structure. Thus, the court below determined that the plaintiff's average monthly work days in the defendant company's 4th regular work hours in the defendant company's 96th regular work hours in the above disciplinary action against the plaintiff company cannot be objective materials for the actual work income before the disciplinary action of the plaintiff. Thus, it is reasonable that the plaintiff's average monthly work days in the above 96th regular work days in the defendant's 196th regular work days.

2. The judgment of this Court

According to the evidence duly employed by the court below, the defendant company abolished the so-called taxi commission scheme, which takes its income into account from September 1, 1998 to pay a certain amount of taxi commission out of the transport earnings on the working day, and adopted and implemented the so-called total amount management system, which receives ex post payment from the company after the full payment of the transport earnings on the working day to the company. However, in light of the operational status after the full-scale management system, where the transport earnings are paid in excess of the minimum wage, the increase in the tax on the excess portion should be borne by the defendant company, while by prescribing that the excess should not be included in the average wage in calculation of retirement pay, rather than by implementing the full-time management system, the defendant company maintained the burden when it complies with the above provision, and actually did not establish the total amount of the taxi commission scheme in order to improve the actual condition of the transport earnings that the defendant company did not receive more than 70 percent of the total amount of the transport earnings from the defendant company's wage management system in accordance with the wage management system.

Therefore, it is somewhat inappropriate for the court below to determine that even if the defendant company implemented the total transport income management system, it is bound to decide on the autonomous decision of the taxi engineer in consideration of the characteristics of the taxi engineer's work form and the nature of the additional transport income paid. However, as long as the defendant company actually maintained the previous taxi commission system, the ground of appeal that the plaintiff's wage should be calculated on the basis of only the amount exceeding the minimum amount of taxi income recognized by the plaintiff's total transport income deposit data on the premise that the defendant company actually maintained the previous taxi commission system cannot be accepted.

However, as wages arise under an agreement between an employer and an employee, in order to seek wages during the period of dismissal, it is necessary to prove that the actual amount of the wages actually earned at the time of dismissal in the instant case where the Plaintiff was actually under the actual taxi commission scheme, and it is not possible to calculate the wages during the period of dismissal based on the general statistical income immediately on the ground that there is no evidence to prove that there was no material to specify the actual income of the Plaintiff at the time of the instant disciplinary action, it is erroneous for the lower court to calculate the Plaintiff’s wages by applying statistical income under the statistical survey report on the basic statistical survey on the structure of wages on the ground

Ultimately, the court below did not err in the misapprehension of legal principles as to the scope of application of wages or statistical income, which affected the conclusion of the judgment. Thus, the defendant's ground of appeal pointing this out is without merit.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)