[Defendant-Appellee-Appellant-Appellee-Appellee-Appellant] 10 others

Maximum Water-gun (Attorney Kim Jin-young, Counsel for the plaintiff-appellant)

November 22, 2005

1. The defendant shall pay to the plaintiff Jong-tae 2,377,552 won, gold 3,815,641 won, gold 2,395,914 won, gold 2,273,321 won, gold 5,06,568 won to the plaintiff Cho Jong-tae, gold 2,571,814 won, gold 4,459,030 won to the plaintiff Cho Jong-tae, and gold 4,477,472 won to the plaintiff Kim Jong-tae, and gold 3,297,950 won to the plaintiff Kim Jong-tae, and gold 1,852,545 won to the plaintiff Kim Jong-tae, and gold 5,675,57,548 won to the plaintiff Cho Jong-tae, and 205.25% of the annual amount to the plaintiff Cho Jong-tae, 205,635,645,65.25% of the annual amount from the above 205.25%

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 1/10 of the costs of lawsuit are assessed against the plaintiffs and the remainder at each of the defendants.

4. Paragraph 1 can be provisionally executed.

The defendant shall deliver the money of this case to the plaintiff Jong-tae for 2,57,222 won, gold 4,298,915 won, gold 2,61,200 won, gold 2,550,141 won, gold 6,280,425 won, gold 2,906,102 won, gold 4,863,003 won, gold 4,361 won, gold 4,484,361 won, gold 3,63,563 won, gold 2,203 won, gold 2,51,203 won, gold 651,203 won, and gold 2,51,203 won, to the plaintiff Kim Jong-tae for 1, and the plaintiff Kim Jong-tae for 200% of the total amount of money of this case to the plaintiff Jong-tae for 2,50,203 won and the above 20% of the total amount of money of this case.

1. Basic facts

The following facts are not disputed between the parties, or each statement in Gap evidence 3-1 to 36, Eul evidence 4, Eul evidence 1 to 3, Eul evidence 5, Eul evidence 8-1 to 8, and there is no other counter-proof.

A. The defendant operated a driving school (hereinafter, from November 1, 2003 to March 26, 2005, the plaintiff's trademark was from April 7, 2003 to February 2, 2005, the plaintiff's right leather was from December 4, 2003 to February 205, the plaintiff's name was from December 20, 2005 to December 20, 2005; the plaintiff's name was from December 20, 200 to 3. 5, from December 20, 200 to 3. 5, from August 20, 200 to 205; the plaintiff's name was from September 20 to 20, 200 to 3. 5, from September 18, 200 to 204; the plaintiff's name was from September 20, 200 to 18, 204 to 201.

B. The rules of employment of the instant driving school stipulate with respect to wages and retirement allowances as follows.

Article 42 (Amount of Wages)

The wage level of employees shall be higher than the minimum wage level under the Minimum Wage Act.

Article 43 (Conclusion and Payment of Benefits and Wages)

A private teaching institute shall close the date of commencement of the monthly salary on the 20th of the previous month and pay it on the same day, counting from the 21st of the previous month, and the wage in the method of calculating the monthly salary shall be paid on the 20th of the previous month and the 25th of the previous month, counting from the 20th of the previous month ( obvious that it is a

Article 45 (Calculation Method of Benefits)

(1) In calculating benefits a day, in cases of a monthly-class worker, it shall be calculated by 1/30 of the ordinary monthly-class worker regardless of his/her substitute monthly-class worker.

(2) A fractional amount of less than ten won shall be included in the calculation.

Article 46 (Additional Wage)

(1) If a member works in excess of eight hours a day and forty-four hours a week, fifty percent of the ordinary wages shall be added thereto.

(2) Where a member works on a holiday prescribed in these Rules, 50/100 of his/her ordinary wage shall be added thereto.

(3) In addition to 50/100 of ordinary wages, if night work (from 10:0 p.m. to 6:0 a.m.), it shall be paid.

(5) Article 49-2 (Benefits of Temporary Retirement and Dismissal)

(1) The salary of the last service month of an dismissed person shall be calculated on a daily basis.

Article 51 (Retirement Allowances)

For one year of continuous employment, the average wage of 30 days shall be paid to an employee who retires as a retirement allowance: Provided, That where the number of years of continuous employment is less than one year, it shall not be paid.

C. The Defendant, including the Plaintiffs, has paid the basic salary of KRW 1,900 per hour to the employees of the above private teaching institute (the salary of KRW 8 hours per day, KRW 4 hours per Saturday), and has paid the following details.

(a) Off-time allowances (the allowances for the hours worked in excess of eight hours between 06:00 to 22:00): 2,850 won per hour (1,90 won x 150%)

(b) Week leave allowances (the allowances for paid leave every week to workers who have completed their normal daily service): 1,900 won per hour (1,900 won x 100%)

(c) Holidays’ allowance (the allowance for the hours worked within the limit of eight hours on paid holidays): 4,00 won per hour (the payment by lump-sum).

(d) Special allowances (the allowances for the hours worked in excess of eight hours on paid holidays): 5,700 won per hour (1,900 won x 300%)

(5) Support allowance (the allowance for the hours worked for education other than the assigned training hours), early allowance (the allowance for night time worked before 06:00 and after 22:00), introduction allowance (the allowance that is paid when a student was admitted to a private teaching institute by introducing his/her student to the private teaching institute), encouragement allowance (the allowance that is paid when a student was admitted to the private teaching institute), performance bonus for a kind, job allowance (the management allowance paid to the instructor in charge of his/her duties among the current personnel), executive allowance (the management allowance paid to the instructor in charge of duties among the current personnel), executive allowance (the allowance paid to the employee in charge of duties

(6) In addition to the above allowances, the defendant paid a certain monthly amount to workers including the plaintiffs. Continuous work allowances have been paid 30,000 won per month for a worker's continuous work period of less than 3 months, 50,000 won per month for a worker's continuous work period of less than 3 months, 80,000 won per month for a worker's period of not less than 3 years but less than 1 year, and 130,000 won per month for a worker's period of not less than 1 year but less than 2 years, and a certain monthly amount of wages shall be paid by adding a monthly premium of not less than 130,000 won for a worker's day on which the worker did not work, and the training allowances have been paid periodically to all workers every 40,000 won for more than 250 hours per month in addition to the above 40,000 won for a worker's monthly work hours of less than 350,500 hours per month.

D. The calculation method of retirement allowances of the instant driving school shall be as follows: “Retirement allowances = Average wage 】 30 days (total number of days of continuous service / 365 days)”; and the calculation method of average wage = [average wage / [total wages (basic pay, overtime allowances, weekly holiday allowances, holiday allowances, special allowances, holiday allowances, holiday allowances, holiday allowances, holiday allowances, holiday allowances, training allowances, training allowances, introduction allowances, continuous service allowances, monthly allowances, etc.) for three months prior to the retirement date + (3/12) / the total number of days for three months prior to the retirement date.”

E. The plaintiffs' basic working hours, overtime hours, paid holiday hours, paid holiday hours, paid holiday hours, basic pay, overtime hours already received, overtime allowances, weekly paid holiday allowances, holiday allowances, and special overtime allowances are as shown in the corresponding column against the plaintiffs in the separate sheet No. 1. The plaintiff's emotional leaps, this trademark, rights and leathers, patiences, patiences, patience, Kim Jong-Un, Kim Jong-Un, and other allowances paid for three months before he retires from the private teaching institute of this case (the next basic pay, overtime hours, weekly paid holiday allowances, holiday allowances, holiday allowances, holiday allowances, and special overtime allowances, and the amount of retirement allowances already received by the above plaintiffs for one year are as listed in the corresponding column of the separate sheet No. 2 list against the above plaintiffs.

F. Meanwhile, the statutory minimum wage under the Minimum Wage Act is KRW 2,100 from September 2001 to August 2002, 200, KRW 2,275 from September 2002 to August 2003, 200, KRW 2,510 from September 2003 to August 2004, and KRW 2,840 from September 2004 to August 2005.

2. Determination as to the plaintiffs' claims

A. The assertion

As the cause of the claim in this case, the plaintiffs were only based on the basic rate of KRW 1,900 when the defendant paid overtime allowances, overtime allowances, weekly holiday allowances, and holiday allowances to the plaintiffs. In light of the above basic rate, even if the defendant calculates ordinary wages by including KRW 40,00 among the training allowances that the defendant paid regularly and uniformly to the plaintiffs, the ordinary wages that the defendant paid to the plaintiffs are below the minimum wage under the Minimum Wage Act, and therefore, the defendant is liable to pay each amount stated in the purport of the claim as unpaid wages and retirement allowances calculated based on the difference between the ordinary wages and the minimum wage that the defendant paid to the plaintiffs.

In regard to this, the defendant's continuous service allowance paid by the defendant was deducted only when the worker did not actually provide his/her labor according to the principle of non-labor-free pay, and if the worker provided his/her labor, it is paid periodically a certain amount every month regardless of the actual work performance according to the worker's continuous service years. Thus, the training allowance in excess of the above 40,000 won is included in ordinary wages as well as the training allowance in excess of the above 40,000 won is not different from the nature of the training allowance in the above portion. Thus, even if the training allowance in excess of the above 40,000 won is not included in ordinary wages, the training allowance was paid in order to avoid the smooth way to adjust the wages of the worker in accordance with the minimum wage adjusted every year, so the defendant was paid in excess of the minimum wage under the Minimum Wage Act, so the plaintiff's claim cannot be complied with.

B. Determination

(1) Whether the case constitutes ordinary wages

Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that the ordinary wages under the Labor Standards Act refer to hourly wages, daily wages, weekly wages, weekly wages, monthly wages, or contract wages to be paid to workers regularly and uniformly for a prescribed work or total work. Thus, in principle, money paid to workers as the object of a prescribed work or total work, which falls under a fixed wage determined to be paid periodically and uniformly, is all wages which belong to ordinary wages.

(a) Continuous service allowances;

In full view of the purport of the arguments in Gap evidence 2-1, 2, and 3-27, 30 of Gap evidence Nos. 2-1, 3-2, and Eul evidence Nos. 30, the plaintiff Jeong Tae was paid 16,000 won for continuous service as remuneration for continuous service on April 2005, while the defendant was paid 80,000 won for continuous service, the plaintiff's right leather was paid 17,000 won for continuous service as remuneration for continuous service on August 2004, but only 17,000 won was paid for continuous service after being paid 130,000 won for continuous service as remuneration for continuous service on Oct. 204, 200, it can be recognized that the defendant himself received 125,660 won for continuous service as remuneration for continuous service on 97,500 won, and it can be viewed that the remaining amount of continuous service was 96,000 won for continuous service as remuneration for continuous service.

(b) Training allowances;

According to the above facts, among the training allowances in this case, the amount of 40,000 won is regularly, uniformly, and fixed to all workers whose working hours are less than 250 hours, while the training allowances paid in excess of the above amount of 40,000 won have been paid differently depending on the working hours of workers. As such, the training allowances exceeding the amount of 40,000 won decided according to the actual work performance cannot be deemed as fixed wages, and thus, it cannot be deemed as constituting ordinary wages.

(2) Whether the lack of minimum wage has been transferred as training allowances

With respect to the Defendant’s assertion that the lack of minimum wage to be paid to the Plaintiffs was transferred as training allowances, there is no evidence to prove that there was an agreement between the Plaintiffs and the Defendant to compensate for the shortage of minimum wage through the payment of the above training allowances, and as a general rule, an employer shall determine the basic wage to the workers in a labor contract and pay them in addition to the allowances based on it. Thus, even if the employer concludes the wage payment contract with the purport of increasing convenience in the calculation and employee’s desire to work by taking into account the family, working hours, the form of work and the nature of work, etc., without calculating the basic wage in advance, the sum of the allowances shall be determined as monthly wages or daily wages, or the monthly wage payment contract with the purport of paying a certain amount as the zero-month allowance cannot be deemed null and void only when it is deemed justifiable in light of the collective agreement or the rules of employment (see Supreme Court Decision 96Da24699, Mar. 24, 199), and it is not reasonable to recognize that the above amount exceeded the minimum wage rate of 20 days per month.

(3) Calculation of unpaid basic pay and statutory allowances

(A) The standard number of hours for ordinary wages calculation

The wage system of the private teaching institute in this case calculates the basic daily wage on the basis of the urgency and calculates the basic monthly wage on the basis of it again, calculates the overtime allowance, holiday allowance, special overtime allowance, and weekly holiday allowance, etc. based on the urgency. The calculation is based on the urgency, and all kinds of allowances paid to the plaintiffs were also calculated based on the urgency, as seen earlier. Accordingly, it was actually adopted the hourly wage system and the plaintiffs were paid wages as the urgent wage system.

In a case where a part of a monthly fixed allowance is paid in the form of a monthly salary along with the basic hourly rate, it is reasonable to view that the part of the fixed allowance includes the part having the nature of wage for paid holidays prescribed in the Labor Standards Act. Thus, in calculating the ordinary wage, the part of wage for paid holidays among the fixed allowances paid every month shall be deducted. However, in a case where the part having the nature of wage for paid holidays that are not considered as ordinary wage, is included in the part having the nature of wage for paid holidays that are not considered as ordinary wage, and where it is difficult to determine the ordinary wage, it shall be deemed that the worker worked on paid holidays, calculated the total number of working hours by deeming that the worker was employed on paid holidays, and then calculated the hourly ordinary wage by dividing the fixed allowance containing the nature of wage for paid holidays by the total number of working hours (see Supreme Court Decision 97Da28421, Apr. 24, 1998). Thus, since the Plaintiffs who received the wage as a time wage receive the fixed amount of 40,000 won per month, the above part of the paid hours allowance shall be divided.

Therefore, the standard number of working hours (44 hours x 365 days x 7 days x monthly average working hours x 8 hours x 365 days x 365 days x 7 days) shall be 225.9 hours [52 hours x 365/ (12 x 7), small number 226 hours x 226 hours which the plaintiff makes up for it, but it shall not be accepted as it results favorable to the plaintiff]. The hourly ordinary wage paid by the plaintiffs is 178 won (40,000 won x 225.9 hours x 7 days) calculated by dividing 1,90 won in the Si and training allowances paid by the plaintiffs by the above 225.9 hours (40,000 won / 225.9 hours x 7 days) x 2078 won in total, 1790 won in total x 1790 won in calculation).

(B) Payment obligations of unpaid allowances

(i) unpaid basic pay;

As above, the statutory minimum wage under the Minimum Wage Act was 2,100 won from September 201 to August 2002, 200, 2,275 won from September 2002 to August 2003, 2,502, 2,510 won from September 9 to August 2004, 2,860 won from September 4, 2004 to August 8, 2004, 2,860 won from September 4, 206 to August 4, 207, 360 won, 67, 97, 97, 967, 97, 769, 97, 97, 769, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97

(ii) unpaid overtime allowances;

As above, under the Minimum Wage Act, the minimum market level of 2,10 won from September 201 to August 2002 2, 200, 2,275 won from September 202 to August 2003, 2,52, 2,510 won from September 3, 2003 to August 4, 200, 2,502, 360 won, 36, 47, 67, 97, 67, 97, 76, 97, 96, 76, 97, 76, 97, 96, 96, 76, 97, 96, 76, 97, 67, 97, 97, 97, 97, 97, 157, 67, 97, 57, 97, 97, 15, etc., of ordinary wage under the Labor Standards Act.

(iii) unpaid holiday allowances;

As above, the statutory minimum wage under the Minimum Wage Act was 2,100 won from September 201 to August 2002, 200, 2,275 won from September 2002 to August 2003, 2,502, 2,510 won from September 2003 to August 2, 2004, 2,860 won from September 2, 2004 to August 2, 208, 360 won, 2,50 won from the above minimum wage level was 30,50 won, 360 won, 2,50 won, 360 won, 50 won, 50 won, 50 won, 50 won, 160 won, 50 won, 50 won, 50 won, 50 won, 180 won, 208 won, 17, 2810 won, 500 won, 208 won, 500 won, 106 others.

(iv) unpaid holiday allowances;

As above, notwithstanding that the statutory minimum wage under the Minimum Wage Act from September 2004 to August 2005 is 2,840 won, the defendant has paid holiday allowances to the plaintiffs en bloc on the basis of 4,000 won per hour, and in the case of paid holiday work, 150% of ordinary wage should be paid in addition to the ordinary wage. Thus, the defendant has the duty to pay 30 times the remainder of the paid holiday allowances (40,00 won x holiday work hours x 1.5) which the plaintiffs have already received from September 2004 to 30 times, after deducting the amount of paid holiday allowances (40,00 won x holiday work hours) which the plaintiffs have already received from 30 times, 200 won, 30 won, 200 won, 360 won, 40 won, 208 won, 300 won, 280 won, 200 won, 360 won, 360 won, 280 won, 201.

(v) unpaid special allowances;

As above, the statutory minimum wage under the Minimum Wage Act was 2,100 won from September 201 to August 2002, 201, 2,275 won from September 2002 to 208, 2,275 won, 2,510 won from September 203 to August 2004, 2,840 won from September 7, 2004 to August 7, 2005, the defendant has the duty to pay 30 won for the above minimum wage of 70 won, 30 won, 470 won, 50 won, 470 won, 50 won, 50 won, 170 won, 470 won, 50 won, 50 won, 50 won, 50 won, 50 won, 70 won, 180 won, 67 won, 400 won, 78 won, 500 won, 60 won, 178 won, 5 won, 5 won, etc.

6) Sub-decisions

When calculating each of the above amounts as shown in the separate sheet No. 1, the defendant is obligated to pay 1,94,143 won for unpaid basic wages, overtime allowances, weekly holiday allowances, holiday allowances, and special allowances to the plaintiff Jeong Tae-tae, 3,241,20 won for the plaintiff Lee Jong-tae, gold 1,62,736 won for the plaintiff Lee Jong-tae, gold 3,879,494 won for the plaintiff Cho Jong-hee, gold 3,199,977 won for the plaintiff Cho Jong-chul, and gold 3,217,858 won for the plaintiff Kim Jong-tae, and gold 3,252,427,681 won for the plaintiff Lee Jong-tae, and gold 2,525,48 won for the plaintiff Kim Jong-tae for the plaintiff Kim Jong-tae, 15,458 won for the damages for delay against the plaintiff Lee Jong-tae, 258 won for delay against the plaintiff Lee Jong-tae.

(4) Calculation of unpaid retirement pay

[Attachment 7] The above plaintiff Jeong-tae, this trademark right, Yeng, Yeung, Kim Jong-ju, Kim Jong-tae, Kim Jong-tae, and Cho Jong-tae, were employed by the defendant for at least one year, and were paid retirement allowances listed in [Attachment 2] [Attachment 7] No. 2, which were calculated on the basis of the above 2,087 won. The above 2,087 won is less than the minimum wage under the Labor Standards Act as at the time of their retirement. The defendant is obligated to enter the above 80 won in [Attachment 7] No. 480, 70, 700, 700, 70, 700 won and 47, 70, 500 won and 47, 70, 700 won and 500 won and 47, 700 won and 500 won and the above 70,000 won and 47,000 won.

3. Conclusion

Then, the defendant is liable to pay 2,37,52 won (1,94,143 + 383,409 won) to the plaintiff's own trademark for 2,815,641 won (3,241 + 574,471 won) to the plaintiff's 2,395,914 (1,950,681 + 445,233 won) to the plaintiff's 2,45,275,275,285,275,275,275, 47, 475, 275, 37, 475, 47, 47, 97, 97, 179, 479, 179, 4797, 47, 5797, 197, 475, 175, 275, 47, 197, etc.) to the plaintiff's 25.

[Attachment]

Judges Lee Jin-ro