Plaintiff 1 and eight others (Attorney Go-won, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Sang-sung et al., Counsel for the defendant-appellant)

may 23, 2004

1. The defendant,

A. 8,606,091 won, 12,198, 739 won, 3, 6,053, 819 won, 7,851, 475 won, 4,313 won, 3,150, 493 won, and 20% interest per annum from October 15, 2001 to April 21, 2003; and

B. The Plaintiff 8 paid 2,029,199 won, 1,849,672 won to Plaintiff 9, and 20% interest per annum from October 15, 2002 to April 21, 2003, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. 3/10 of the costs of lawsuit is assessed against the plaintiffs and the remaining 7/10 is assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 1,426,540 won, 14,365 won, 10,373 won, 10,42,421 won, 11,374,427 won, 6,98,987 won to the plaintiff 5, and 6,096,842 won to the plaintiff 7, and 5% interest per annum from the following day to the day of the delivery of the copy of the complaint of this case from October 15, 201 to the day of the full payment, and 20% interest per annum from the next day to the day of the full payment to the day of the full payment, to the plaintiff 8 4,657,334 won, 9, 368,504 won, and each of the above amounts to the plaintiff 5 % interest per annum from the next day to the day of the full payment, to the day of the full payment to 2015.

1. Basic facts

The following facts are either disputed between the parties or acknowledged in each of the 1-9, 1-3, 1-3, 9, 4-5, and 1-2, each of the 1-2, each of the 1-9, 2-3, 2-3 and 4-5.

A. Plaintiff 1 was on March 30, 1991 to September 30, 201 (ten years and six months); Plaintiff 2 from February 19, 191 to September 30, 201 (ten years and eleven days); Plaintiff 3 was on March 6, 191 to September 30, 201 (ten years and six months and six months); Plaintiff 4 was on October 20 through 9, 201 to September 30, 201 to 9, and Plaintiff 5 was on September 16, 201 to 10, 209 to 10, 9, 190 to 10, 198 (9 days from October 20 to 10, 201); and Plaintiff 5 was on September 19, 201 to 10, 201 to 10, 193 months and 19, 19, respectively.

B. Since August 1995, the Defendant Company took part in the daily wage scheme. The Government abolished the taxi commission scheme and made the full payment of the taxi earnings to the taxi company in relation to the taxi transport business, the Defendant Company entered into a wage agreement with the labor union of the Defendant Company (hereinafter “trade union”) on June 21, 199, with the following content (hereinafter “the wage agreement of this case”).

(a)The working hours shall be seven to twenty minutes a day, excluding the break time, and shall, in principle, be two (2) posts a day (Article II(b)).

(b) Both labor and management shall deposit and manage the full amount of taxi charges-meter weather revenues, and the workers shall, after completion of their service, enter the company in and transmit and output the typ metres (Article III(a)).

(c)standard transport earnings shall be 6,250 o, 7 hours and 20 o,6,000 o'clocks and 72,50 o'clocks at o'clocks in accordance with the work classification (Article III(b)).

(d)the standard transport earnings refer to the minimum service performance given to workers and shall be paid in good faith the standard work hours during the period for corporate management and shall be the share of 100 per cent workers for additional payments and shall not be included in wages (Article III(c));

(e) Monthly wages are 528,970 won and are 1 year workers, 286,000 won per day (11,000 won per day), 78,000 won for work on board (3,000 won per day), 34,970 won for night allowances (2,690 won per day; 13 days), 10,00 for continuous service allowances (2: 3,000 won per day); and 120,000 won for bonuses (Article 4).

ⓕ 통상임금은 노동부예규 제327조의 통상임금 산정지침에 따라 기본급과 근속수당으로 정하고, 평균임금은 통상임금, 승무수당, 야간근로수당, 상여금, 기타 수당으로 한다(제6조).

ⓖ 회사는 근로자의 퇴직금을 보존해주는 차원에서 급여지급에 상관없이 1년 이상 근로자 26일 근무기준으로 퇴직금산정의 기초가 되는 월 임금은 기본적으로 738,439원으로 하되, 그 세부내역으로는 기본급 408,519원, 승무수당 55,000원, 근속수당 10,000원, 야간수당 55,952원, 월차수당 15,774원, 상여금 153,194원, 성실근로수당 40,000원이다(제14조).

C. In addition, on June 23, 1999, the defendant company and the labor union entered into a supplementary agreement with the following contents in preparation for cases where authoritative interpretation between labor and management is necessary in the calculation of wages in accordance with the wage agreement of this case.

The main system of the Act shall be referred to as the performance-based monthly rate system, and the standard transportation income shall be determined as prescribed in Article 3 in connection with the existing system, and the additional payment shall be treated as the performance money and shall be paid to 100% workers.

Since 100% of 10% of her total amount of bonus and is earned from overtime work, the monthly wage was not included in the average wage, and the amount was excluded from the average wage of Article 6: Provided, That if there is an agreement that is divided into a certain ratio between labor and management with respect to performance bonus, such as the six-4 performance bonus system, the amount of bonus for workers shall be included in the average wage.

B. A company, as a benefit in return for the above agreement, shall cooperate with the worker so that the worker can receive a higher wage by raising his/her performance rate to the maximum extent and shall not control or restrict autonomous work performed in excess of 7 hours and 20 minutes per daily work hours.

㉣ 회사는 위와 같이 성과금을 평균임금에 포함시키지 않을 경우 퇴직금이 부족될 수 있으므로 제14조에 의거하여 퇴직금을 산정 지급함으로써 부족퇴직금을 지원한다.

D. Under the daily wage contract system of the Defendant company prior to the instant wage agreement, taxi commission was average of 52,250 won per day, and according to the wage agreement that the transport company, which implemented the six-dimensional and four achievement-based achievement-sharing scheme in the Incheon region, intended to implement on March 1, 1996, the daily standard transport income accrued from the achievement amount was KRW 61,70 as a severe penalty, and the monthly wage was KRW 738,439, and the monthly wage was KRW 738,439, respectively. Since the taxi freight adjustment on March 20, 198, each company agreed to adjust the said standard transport income from the minimum of KRW 65,00 per day to the maximum of KRW 68,00 per day by raising the said standard transport income from the maximum of KRW 68,00 per day.

E. The Defendant Company calculated the amount of excess of the standard transport income pursuant to the wage agreement of this case without including it in the average wage, and paid the amount of KRW 7,591,280 to Plaintiff 1, KRW 7,973,940 to Plaintiff 2, KRW 8,024,630 to Plaintiff 3, KRW 7,670,90 to Plaintiff 4, KRW 8,335,450 to Plaintiff 5, KRW 7,259,550 to Plaintiff 6, KRW 8,037,80 to Plaintiff 7, KRW 6,076,47, and KRW 2,438,817 to Plaintiff 9, respectively.

F. Meanwhile, if the amount of retirement calculated is included in the average wage that serves as the basis for the calculation of retirement allowances until the amount exceeds the standard transport earnings, the amount of retirement calculated is KRW 16,197,351; KRW 20,172,679; KRW 20,96; KRW 15,96,792; KRW 13,724,719; KRW 16,929; KRW 16,925 for Plaintiff 4; KRW 16,186,925 for Plaintiff 5; KRW 11,563,463; KRW 63 for Plaintiff 6; KRW 11,18,793 for Plaintiff 7; KRW 8,105,646 for Plaintiff 8; and KRW 9 for Plaintiff 4,28,4897 for Plaintiff 4.

G. Article 24(3) of the Automobile Transport Business Act (amended by the Presidential Decree No. 4780 of Aug. 3, 1994) provides that “The automobile transport business operator as prescribed by the Presidential Decree shall receive the total fare and charge (hereinafter “transport income”) which a transport employee receives from a user from the transport employee.” Article 33-5(2) of the same Act provides that “The transport employee of the automobile transport business operator shall pay the total amount of transport income to the automobile transport business operator.” Article 2-8 of the Enforcement Decree of the Automobile Transport Business (amended by the Presidential Decree No. 1451 of Jan. 21, 1995) provides that “The automobile transport business operator as prescribed by the Presidential Decree.” Article 2 of the Addenda of the Enforcement Decree of the same Act provides that “The automobile transport business operator means a general transport business operator.” Article 34(3) of the same Act amended by the amended Act No. 4780, Mar. 31, 1993>

H. Before the legal provisions on the total amount of taxi earnings have been implemented, the taxi driver paid only a certain amount of money out of the total daily income to the transportation company with a fixed taxi commission, and the transportation company paid a certain amount of money according to the actual number of working days per month to the taxi driver who paid the taxi commission as a monthly wage, in addition to paying a certain amount of money according to the actual number of working days per month to the taxi driver who paid the taxi commission as a monthly wage, taking into account the unique characteristics of his/her work form and the convenience of calculation, the “fixed taxi commission scheme”, which is the form of a “fixed taxi commission scheme,” which is a form of free disposal of the taxi company’s income from the taxi industry, was the ordinary method of management of taxi earnings in the taxi industry and the wage form of the taxi driver. Moreover, the taxi driver paid a certain amount of money out of the total daily income to the transportation company as a taxi commission directly reverts to his/her individual

I. Meanwhile, taxi drivers were also engaged in illegal management, such as tax evasion through a contract system, etc., and due to the taxi commission scheme, taxi drivers were unable to expect monthly salary as business operators are able to secure their livelihood, so they are unstable in the basis of living, and there have been social negative phenomena that undermine the safety and order of the general public by excessively driving, refusing to take passengers, and collecting unfair charges to secure revenues other than taxi commissions, so to regulate these negative phenomena, the provisions of the Act on the Total Amount of Transport Proceeds Management have been implemented since 1994-1995 and the Act on the Total Amount of Transport Income Management has been implemented since September 1, 1997, and the form of wages of taxi drivers had been paid to taxi drivers in full to the transportation company, and the transportation company divided the accumulated excess earnings for 1 month into the transportation company and the transportation company divided the total amount into the total amount of taxi commission, and made the total amount of bonuses or installment savings paid to the defendant driver in full at the rate of 10 per month as the performance-based payment company.

(j) Article 3 and Article 4 of the Guidelines for the Implementation of the taxi Transport Operating System (amended by Ministry of Construction and Transportation Directive No. 292 and enforced from September 14, 200), provides that "any act that a transport business operator or a transport employee does not receive or pay a full amount of transport revenues recorded on a distance (including confirmation devices installed for the management of transport revenues) for one-day working hours on the day on which the operation of the transport employee ends or does not receive or pay a full amount of transport revenues, or any act that a transport business operator receives or pays a certain amount of transport revenues based on the standard amount of transport revenues" shall be construed as "an act of appropriating all expenses necessary for the operation of a vehicle (including expenses, rent, vehicle repair expenses, accident disposal expenses, etc.) to transport employees or other money, an act that does not install a transport record-driven device with the verified transport revenues, an act that does not output or output transport records, or an act of falsely preparing transport revenues and transport records" or a transport employee violates the full amount management system.

2. Occurrence of the obligation to pay retirement allowances of the defendant company;

The excess taxi commission earnings under daily wage contract includes the prescribed amount of the Labor Standards Act (see Supreme Court Decision 84Do1861, Mar. 26, 1985; Supreme Court Decision 87Meu570, Mar. 22, 198). The excess taxi commission earnings under the fixed taxi commission scheme constitute wages which are the basis for labor (see, e.g., Supreme Court Decisions 87Da570, Mar. 22, 198; 91Da36192, Dec. 24, 1993). Such excess taxi commission amounts to average wages that are the basis for insurance benefits under the Industrial Accident Compensation Insurance Act (see, e.g., Supreme Court Decision 98Du15269, Apr. 25, 200; 97Du15269, Apr. 25, 200). Thus, it is difficult for an employer to directly calculate the amount of retirement pay, barring any special circumstance, to be included in the amount of individual taxi commission.

However, unlike the case where a driver pays transport earnings to a wholly transporting company as in the performance-based bonus system, unlike the case where a driver directly reverts revenues exceeding the taxi commission to an individual himself/herself, it shall be deemed that a transportation company may manage and control excess taxi commission because it can clearly confirm and specify the occurrence of excess taxi commission and the scope of the amount, and it shall be deemed that the transportation company has paid to its employees the money equivalent to the excess taxi commission paid to its employees later. Thus, the excess of the taxi commission paid by a transportation company from a driver shall be deemed to be included in the average wage, which serves as the basis for the calculation of retirement allowances (see Supreme Court Decision 2002Da4399, Aug. 23, 2002).

Therefore, the Defendant Company, which takes the performance-based bonus system, did not include the excess taxi commission in the average wage, which is the basis for calculating the amount of retirement pay, in calculating the amount of retirement pay to the Plaintiffs. Therefore, the Defendant Company is obligated to pay the Plaintiffs the remainder after deducting the amount of retirement pay already received by the Plaintiffs from the retirement pay calculated by including the excess taxi commission in the average wage,

3. Judgment on the argument of the defendant company

A. The defendant company's assertion

(1) The allegation that the instant wage agreement constitutes a special condition that does not include the excess taxi commission in the average wage, which serves as the basis for calculating the amount of taxi commission.

The wage agreement of this case, like the wage agreement of this case, has a separate agreement between the labor and management not to make excess taxi commissions as the basis for the calculation of retirement allowances, and if the amount of retirement allowances calculated by such agreement exceeds the lowest limit line guaranteed by the Labor Standards Act, such agreement constitutes a special circumstance that does not include the excess taxi commission in the average wage, which is the basis for the calculation of retirement allowances. As such, taxi drivers would be at the disadvantage of the shortage of retirement allowances, while the taxi drivers would be at the same time a monthly increase of monthly income and free business hours in comparison with the previous one, while the taxi drivers would be at the disadvantage of the shortage of retirement allowances. The defendant company would not limit excess wages, which would result in the disadvantage of the increase of monthly salary and the decrease of the amount of retirement allowances to be paid by the driver company, while at the same time, the wage agreement of this case, which is a conditional employment contract with mutual favorable conditions

(2) The allegation that the instant claim seeking double benefit is contrary to the principle of good faith, disregarding that the instant wage agreement has been benefited by the agreement.

The wage agreement of this case was made by the labor union’s proposal. The Defendant Company is also liable for losses to waive 40% of excess taxi earnings compared to the implementation of the performance-sharing system of labor and management 6-4, on the grounds that it is under the condition that the excess taxi commission should not be included in retirement allowances under the wage agreement of this case. On the other hand, even though the Plaintiffs have enjoyed substantial benefits of 20-3 million won per month, the claim of this case, which is conditional labor contract, is seeking double benefit as retirement allowances, is in violation of the good faith principle (the principle of gold speech) and thus, should not be accepted.

If the wage agreement of this case, which is formed through a labor-management autonomous agreement based on the labor law, is denied by some workers, such as the plaintiffs, and such denial is justified, it will be a big obstacle to the peace of industry and the harmony between labor and management culture by damaging the existence of autonomous labor-management agreement. In the case of the defendant company, it is inevitable to regulate overtime work or to alter the foundation of the wage agreement, so it is difficult to contain a string of a company which is under rehabilitation that is difficult due to the reduction of real income or the decline of employment of many workers, because it is inevitable to regulate overtime work or change the foundation of the wage agreement.

(3) The assertion that only the amount earned with standard working hours should be included in the average wage, which is the basis for the calculation of retirement allowances.

In the case of the performance-based contribution allocation scheme of labor union and company 6-4, 40% of the additional amount exceeding the standard amount of taxi commission is the revenue of the defendant company, and it is natural that the total amount of wages paid with 60% of the additional amount of 60% as the performance-based contribution shall be included in the average wage, which is the basis for the calculation of retirement allowances, since it is money and valuables that can be controlled by the company. However, in the case of the performance-based contribution scheme of 100% adopted under the wage agreement of this case, even if the excess amount of the standard amount of taxi commission is included in the average wage, which is the basis for the calculation of retirement allowances, the additional amount of excess amount of the standard amount of taxi commission is the revenue of workers, and it can be said that it is only managed by the company (i.e., the amount obtained by the labor-management can not be divided into the average wage (i. the part obtained by the base

If we do not do so, the plaintiff 1's arbitrary judgment and argument that the defendant company's wage agreement can be reflected in the average wage, which is the basis for calculating the retirement allowance, and may escape a lot of more retirement allowances. The plaintiff 1 has induced the people around and deposited the transport income to the greatest extent through overtime work, and has paid the transport income in addition to his personal money in addition to the distance income due to the lack of it, and there is an unreasonable result that the company should prepare for the retirement allowance to the extent that it is not able to control.

B. Determination on the argument of the defendant company

(1) As to the allegation that the instant wage agreement constitutes a special situation

Even if the excess taxi commission falls under the average wage which serves as the basis for the calculation of retirement allowances, it can be agreed explicitly or implicitly between labor and management to exclude the excess taxi commission from the average wage which serves as the basis for the calculation of retirement allowances under the principle of autonomy of the collective agreement. However, since collective agreement does not violate the Labor Standards Act, the collective agreement is not contrary to the Labor Standards Act, so that the minimum amount of retirement allowances calculated under the agreement must be paid to the retired employee under Article 34 of the Labor Standards Act, such agreement is valid (see Supreme Court Decision 2003Da40538, Dec. 11, 2003).

However, since it is apparent that the retirement amount calculated according to the result of the application of the wage agreement in this case falls short of the minimum limit guaranteed by Article 34(1) of the Labor Standards Act (the employer shall set up a system that can pay the average wage of not less than 30 days for each year of continuous employment as retirement allowance) and the agreement on the non-Inclusion of excess transportation income in retirement allowance is null and void, the wage agreement in this case cannot be deemed as a special circumstance (see Supreme Court Decision 2002Da4399 delivered on August 23, 2002 on matters where there was a collective agreement identical to the wage agreement in this case). Accordingly, this part of the allegation by the defendant company is without merit.

(2) As to the assertion that the instant claim violates the good faith principle

Article 34(1) of the Labor Standards Act provides that "an employer shall establish a system under which an employee shall pay an average wage of not less than 30 days for each year of continuous employment as a retirement allowance to a retired employee." Article 19(1) of the Labor Standards Act provides that "The term "average wage" means the amount calculated by dividing the total amount of wages paid to the relevant employee during the three months before the date on which a cause to calculate it occurred by the total number of days during that three months prior to the date on which the cause to calculate it occurred, by the total number of days during that three months." Thus, the purpose of the calculation of such average wage is to guarantee the ordinary life of the employee as before (see Supreme Court Decision 98Da49357, Nov. 12, 199).

However, even if the labor union concluded the wage agreement of this case by offering an offer first to the defendant company in order to promote its employees' interest, which is a mandatory law as asserted by the defendant company, it would result in realizing the result of the plaintiff's exclusion under Article 34 (1) of the Labor Standards Act, which is a mandatory law, as well as the purport of the above provision. Thus, barring any special circumstance, it cannot be said that the above assertion goes against the principle of trust and good faith (see Supreme Court Decision 9Da4405 delivered on March 23, 199). Therefore, this part of the defendant company's assertion is without merit.

(3) As to the assertion that the portion of the performance derived from standard working hours should be limited

The special circumstance that the excess taxi commission is not included in the average wage, which is the basis for the calculation of retirement allowances, refers to a case where there is no possibility or control of excess earnings of a shipping company. The management feasibility or controlability referred to in this context means that the employer cannot have predictability of wage in order to secure predictability in securing the financial resources of retirement allowances, is the concept designed for the purpose of exclusion from the average wage, so the management possibility or controlability is directly related to the existence or absence of predictability in raising the financial resources of retirement allowances.

On the other hand, under the performance-based system after the implementation of the total transport income management system, taxi drivers shall attach and operate tachote (tachote) with operation recording functions so that operation hours, driving distance, distance, passenger car distance, business distance, business hours, poor time, opening hours, and revenue amount can be verified by the tchof. In order to increase the total transport income amount, it is clearly confirmed that the occurrence of excess amount and the amount of excess amount if the transport company is paid every day, and that it can be prevented by the tchof to pay the transport company exceeding the amount which is not part of the transport income in order to increase the total transport income amount. Therefore, in raising the financial resources for retirement benefits, it is considered that there is predictability and possibility of management and control of the transport company.

Therefore, regardless of such predictability, this part of the defendant company's assertion is not reasonable under the premise that the defendant company is able to divide profits and control.

The basic principle of the added average wage is to calculate the ordinary living wage of workers as it is so that the retirement benefit is remarkably higher or less than the ordinary wage due to the special and incidental circumstances is contrary to the fundamental purpose of the system. Therefore, in order to increase the amount of retirement pay, if it is recognized that the company has paid the money that is not part of the worker's transportation revenue, which is not the transportation revenue, in excess of the amount, in order to increase the amount of retirement pay, such part shall be excluded from the calculation of average wage. However, even though it is difficult to view that Plaintiff 1 retired one year before the Supreme Court's ruling that the excess amount of the taxi commission in the performance-based bonus system should be included in the average wage was sentenced, and it is difficult to view that Plaintiff 1 was paid to a transportation company that is more than the amount of transportation revenue, and there is no other evidence to acknowledge

4. Conclusion

Therefore, the defendant shall pay 8,606,091 won (16-197,351 won) to the plaintiff 1 and 2 for 12,198,739 won (20,172,679 won) and 7,972,162 won (15,96,792 won) to the plaintiff 3 for 7,996,792, 819 won (13,724,719 won) and 40.28% of the annual damages for delay calculated from the above 160,670,670,90 won (16,186,9258,3450 won) to the plaintiff 5 for 7,197,981,305 won and 97.30% of the annual damages for delay as stated in the above-mentioned Special Act, 405 won and 50% of the annual damages for delay;

Judges Song Jae-ho