[1] Whether a local government public official's right to claim excess service allowances is recognized only within budgetary limits compiled by a local government in accordance with the budget compilation guidelines (negative)

[2] Whether the scope of recognition of overtime hours under the "Guidelines for Handling Local Public Officials' Remuneration Services, etc." is limited to the scope of budget, and whether the legal nature can be recognized as to the restriction of overtime hours service and overtime work allowances on duty (negative)

[3] In a case where a former or incumbent fire-fighting officer in the jurisdiction of Jeju Special Self-Governing Province worked in two or three classes and worked in excess of working hours stipulated in the Local Public Officials Service Regulations, and a local government only paid allowances below actual working hours by setting the criteria for payment of overtime work hours on the grounds of “Guidelines for Handling Local Public Officials Remuneration, etc.”, the case holding that the local government is liable to pay overtime work allowances equivalent to the remainder obtained by deducting the already paid overtime work hours from the reasonable excess work hours, regardless of

[1] A local public official’s allowance is stipulated by a statute, so long as excess work allowances, such as overtime work hours, night work hours, and holiday work allowances, are appropriated in the budget, the local public official may seek payment of overtime work allowances corresponding to the actual overtime work hours under the order of work, and this does not change merely because the local government organized the budget for overtime work hours that fall short of the actual work hours under the guidelines for budget compilation.

[2] Article 15(4) of the former Regulations on Allowances for Local Public Officials (amended by Presidential Decree No. 19834, Jan. 12, 2007) shall be deemed delegated to the Minister of Government Administration and Home Affairs and the head of a local government the procedural matters of “necessary with respect to the payment criteria, payment method, etc. of overtime work allowances.” Since legislative matters beyond the scope of delegation cannot be deemed as constituting the right to request overtime work allowances per se or granting the authority to restrict the scope thereof, legislative matters cannot be recognized. Ultimately, in addition to the procedural matters necessary for the payment criteria, payment method, etc. of overtime work allowances under the Local Public Officials Remuneration Guidelines, there are no statutory provisions regarding the restriction on the scope of recognition of overtime work hours within budgetary limits and the restriction on the payment method of overtime work allowances and overtime work allowances.

[3] In a case where a former or incumbent fire-fighting officer in the jurisdiction of Jeju Special Self-Governing Province worked for two or three classes and worked for more than the working hours stipulated in the Local Public Officials Service Regulations, and a local government established the criteria for payment of excess work hours based on the "Guidelines for Handling Remuneration, etc. of Local Public Officials" and paid overtime work hours below the actual working hours, the case holding that the local government has a duty to pay excess work allowances equivalent to the remaining amount obtained by subtracting the amount of excess work hours already paid by a fire-fighting officer, regardless of the extent of budget compiled

[1] Articles 44(3) and 45(1) of the former Local Public Officials Act (amended by Act No. 8396 of Apr. 27, 2007; see current Article 44(4)); Article 30 of the former Local Public Officials Act (amended by Presidential Decree No. 19834 of Jan. 12, 2007); Article 15, 16, and 17 of the former Local Public Officials Act; Article 30(1) (see current Article 36(1)) of the former Local Finance Act (amended by Act No. 7663 of Aug. 4, 2005); Article 44(3) of the former Local Public Officials Act (amended by Act No. 8396 of Apr. 27, 2007; see current Article 40(3) and (4) of the former Local Public Officials Act (amended by Act No. 8396 of Apr. 16, 2007); Article 16(3) of the former Local Public Officials Act

[1] Supreme Court Decision 99Da7367 delivered on September 22, 2000 (Gong2000Ha, 2171) Supreme Court Decision 2005Da9227 delivered on September 10, 2009 (Gong2009Ha, 1595)

Plaintiff 1 and 35 others (Law Firm Samil, Attorneys Song-hae et al., Counsel for plaintiff-appellant)

Jeju Special Self-Governing Province and two others (Defendant 1 and 3, Counsel for the defendant-appellant)

March 24, 2011

1. A. Defendant Jeju Special Self-Governing Province: (a) with respect to each of the money listed in the separate sheet “(3)” in attached Table 1 attached to the Plaintiffs, and with respect to each of the money indicated in the “(1) human principal” column:

B. As to Plaintiff 35’s KRW 7,710,981 and KRW 7,412,040 among them:

C. As to the Plaintiff 36 KRW 5,763,108 and KRW 5,517,540 among them:

It shall pay 5% interest per annum from November 2, 2010 to May 12, 201, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims against the defendants are all dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

Defendant Jeju Special Self-Governing Province shall pay to the Plaintiffs each of the money listed in the separate sheet Nos. 2(3) and “the principal claimed” among the money listed in the separate sheet No. 2(1). Defendant Seoul Special Self-Governing Province shall pay to Plaintiff 35 the amount of KRW 8,454,701 and KRW 8,125,792, Defendant Jeonnam-do shall pay to Plaintiff 36 the amount of KRW 6,394,348 and KRW 6,126,372 per annum from November 2, 2010 to the date of full payment.

1. Facts of recognition;

A. The plaintiffs are incumbent or former fire officers of each fire station within the jurisdiction of the defendant Special Self-Governing Province, and plaintiffs 35 work in the fire station within the jurisdiction of the defendant Seoul Special Metropolitan City because they were transferred around May 2009, and plaintiffs 36 work in the defendant Jeonnam-do fire headquarters after being transferred around May 15, 2009.

B. Unlike public officials in general service, the Plaintiffs are public officials classified as the so-called “persons subject to actual service,” whose excessive service is institutionalized due to the nature of duties that need to respond to emergency situations, such as fire, disaster, etc., unlike public officials in general service.

(c) Foreign fire officers shall serve in the form of two or three classrooms a day; in the case of two-day serving in the two-day serving in the same class, twenty-four-hour shift work shall be divided into two groups; in the case of three-day serving in the same class, three groups shall work in the form of shift work every certain hour;

D. Accordingly, the employees working for the third class work for about 240 hours each month (24 hours x 30 days/3) and for about 192 hours per month, which are the average working hours of public officials prescribed by the Local Public Officials Service Regulations, are more than 48 hours per month, and the employees working for the second class work for about 360 hours per month (24 hours x 30 days/2) and work for more than 168 hours per month, and work for more than the average working hours per month and on night or holiday.

(e) Details of the regulations concerning excess service allowances in the guidelines for handling local public officials' remuneration duties, etc. established by the Minister of the Interior and Safety shall be

A person shall be appointed.

F. The Defendants, based on the guidelines for handling local public officials’ remuneration duties, set the criteria for paying overtime allowances for each local government (in the case of Seoul Special Metropolitan City, the maximum of 75 hours per month, and in the case of Jeju Special Self-Governing Province, the maximum of 32-45 hours per month) and paid overtime allowances to the Plaintiffs below the actual hours

G. The Defendants, based on fire-fighting officials’ service regulations, implemented the Nos. 140, which set up the sequences among fire-fighting officials who work for the second class from June 3, 2003 to once a month and implemented the No. 1400, which expanded from August 16, 2005 to February 3, 201.

H. On October 12, 2009, the rest of the Plaintiffs except Plaintiffs 32, 35, and 36 sent content-certified mail demanding the payment of excess service allowances payable to Defendant Jeju Special Self-Governing Province on October 17, 2009.

[Reasons for Recognition] Gap's evidence 10-1, 2, Gap's evidence 19, Eul's evidence 9, the purport of the whole pleadings

2. Relevant statutes;

▣ 구 지방공무원법(2007. 4. 27. 법률 제8396호로 개정되기 전의 것)

Article 44 (Principles of Determination of Remuneration)

(1) The remuneration of public officials shall be determined by rank so as to be commensurate with the degree of difficulty and responsibility of duties, in consideration of the standard living cost of the general public, wages of the private sector, and other circumstances: Provided, That the remuneration of public officials engaged in duties the degree of difficulty and responsibility of which is considerably special, or in duties the filling of which is difficult, or the remuneration of public officials in the categories of research

(3) No money or valuables may be paid as remuneration of public officials, unless it is provided by this Act or other Acts and subordinate statutes.

Article 45 (Provisions concerning Remuneration)

(1) Matters concerning remuneration of public officials shall be prescribed by Presidential Decree:

1. Matters concerning salaries, salary classes and raises in salary;

2. Matters concerning allowances; and

3. Matters concerning payment method, calculation and other matters concerning the payment of the remuneration.

▣ 구 지방공무원 복무규정(2007. 12. 31. 대통령령 제20502호로 개정되기 전의 것)

Article 2 (Work Hours, etc.)

(1) In principle, working hours of local public officials (hereinafter referred to as "public officials") shall be 40 hours a week, excluding occupation and exit hours, and Saturdays shall be in a holiday.

▣ 구 지방공무원수당 등에 관한 규정(2007. 1. 12. 대통령령 제19834호로 개정되기 전의 것)

Article 15 (Overtime Work Allowances)

(1) A part-time work allowance shall be paid to a person who has worked outside working hours prescribed by an order to work within budgetary limits: Provided, That this shall not apply to a part-time public official in contractual service.

(2) An overtime work allowance shall be paid 7 percent of the amount of salary of the standard salary class applicable to the relevant public official for each hour (6 percent in cases of public officials in contractual service who fall under subparagraphs 5 and 6 of the annual salary class of public officials in contractual service appointed to the open-type position among those in contractual service, 6 percent in cases of those in contractual service, and 70 percent in cases of public officials who are not public officials in contractual service and non-permanent public officials in contractual service appointed to the open-type position, hereinafter referred to as "amount of standard salary"), and 15 percent in cases of public officials in contractual service who are not public officials in contractual service and non-permanent public officials shall be paid at the rate equivalent to 15 percent in cases of public officials in contractual service;

(3) The standard salary under paragraph (2) shall be as specified in attached Table 11.

(4) Matters necessary for the standards and methods of payment of overtime work allowances shall be determined by the head of a local government within the extent determined by the Minister of the Interior

Article 16 ( Night Work Allowances)

(1) A public official in contractual service who works only at night and who works at night as a day-time replacement worker shall be paid a night duty allowance within budgetary limits: Provided, That this shall not apply to a public official in contractual service who is in a non-permanent position.

(2) Night work shall be based on 8 hours a day, and 1/226 of the base salary referred to in Article 15 (2) shall be paid for each hour.

Article 17 (Holiday Work Allowances)

(1) A holiday work allowance shall be paid to persons who work on holidays within budgetary limits: Provided, That this shall not apply to public officials in contractual service who work on a non-permanent basis.

(2) With respect to a holiday work allowance, 15 percent of the base salary referred to in Article 15 (2) shall be paid per day.

(3) Matters necessary for paying allowances, such as the payment method of holiday work allowances shall be determined by the Minister of Government Administration.

3. The parties' assertion

A. Summary of the plaintiffs' assertion

The plaintiffs worked for the second or third class work, and worked for more than working hours under the Local Public Officials Service Regulations, but the defendants paid excessive work allowances to only a part of the actual overtime work hours on the grounds of budgetary reasons.

Therefore, Defendant Jeju Special Self-Governing Province is obligated to pay to the Plaintiffs, to Plaintiff 35, and to pay the excess service allowance and damages for delay to Plaintiff 36.

B. Summary of the defendants' assertion

Articles 15(1), 16(1), and 17(1) of the former Regulations on Allowances, etc. for Local Public Officials stipulate that overtime work hours, night work allowances, and holiday work allowances shall be paid within budgetary limits, and Articles 15(6) and 17(3) stipulate that the head of a local government shall determine the standards for payment of overtime work hours and holiday work allowances to the extent determined by the Minister of Government Administration and Home Affairs. According to such comprehensive delegation, the guidelines for handling local public officials’ remuneration, etc. established by the Minister of Public Administration and Security shall be deemed delegated matters and shall be effective as an order under the Acts and subordinate statutes, and shall be established in comprehensive consideration of various circumstances, including the actual working hours, budgetary circumstances, equity with general public officials, nature of overtime work allowances, and other various circumstances. Thus, the Defendants are obliged to pay overtime work allowances in accordance with the specific standards set by the Rules of the Ministry of Public Administration and Security, and there is no obligation to pay overtime work allowances or overtime work allowances in excess of the above standards.

Even if the overtime work allowance should be paid for the part beyond the guidelines for handling local public officials' remuneration duties, the overtime work hours should be calculated based on the actual work hours excluding approximately three hours of water surface hours, meal hours, break time, etc., and the period of leave according to the implementation of the Serial work system should be excluded from the actual work hours, and only the excess work hours according to the rate of the premium rate stipulated in the guidelines for handling local public officials' remuneration duties, etc. are the duty to pay.

4. Whether guidelines for handling local public officials' remuneration duties, etc. are legal applicable;

A. Interpretation of provisions on allowances for local public officials, etc.

As seen earlier, Articles 44(3) and 45(1) of the former Local Public Officials Act (amended by Act No. 8396, Apr. 27, 2007) adopt the so-called statutory principle concerning the remuneration of local public officials under Article 44(3) and Article 30 of the Local Public Officials Remuneration Regulations (amended by Act No. 8396, Apr. 27, 2007); and Article 30 of the former Local Public Officials Remuneration Regulations (amended by Act No. 1983, Apr. 17, 2007) provides that “Any public official may be paid necessary allowances within the scope of his/her budget, other than his/her salary,” and Article 30 of the former Local Public Officials Remuneration Regulations (amended by Presidential Decree No. 19834, Jan. 12, 2007) provides that the former Local Public Officials’ Allowances shall be calculated within the scope of his/her budget prescribed by Ordinance No. 1660, Nov. 30, 2006.

In full view of the provisions of the aforementioned relevant statutes, allowances for local public officials are determined by the statutes. As long as excess allowances, such as overtime work hours, night work hours, and holiday work allowances, are appropriated in the budget, local public officials may seek payment of overtime work allowances equivalent to the actual overtime work hours under the order of service, and this does not change with the fact that local governments included the excess work hours under the guidelines for budget compilation (see Supreme Court Decision 9Da7367, Sept. 22, 2000).

In addition, Article 15(4) of the former Regulations on Allowances for Local Public Officials can be seen as a delegation provision on the scope of payment of overtime work allowances. However, in light of the following: (a) the right to claim allowances is a consideration for provision of overtime work, and the scope of payment of overtime work allowances is bound to be determined according to the amount of provision of labor; (b) the head of a local government has discretion on remuneration if the above provision is viewed as a delegation provision on the scope of payment of overtime work allowances; and (c) this is not consistent with the legal principles and system prescribed by the Local Public Officials Act, it is reasonable to deem that the above provision delegates the procedural matters to the Minister of Government Administration and Home Affairs and the head of a local government as it is the purport of the language and text. It is difficult to deem that the above provision delegates the procedural matters

(b) Whether guidelines for handling local public officials' remunerations, etc. are applicable;

As seen above, it is reasonable to deem that the provisions on allowances for local public officials, etc. delegated the administrative legislation only to the procedural matters necessary for the payment criteria and payment method of excess allowances. As such, legislative matters beyond such delegation scope cannot be recognized. Ultimately, in addition to the procedural matters necessary for the payment criteria and payment method of excess allowances, the scope of recognition of overtime hours at issue in this case shall be limited within the scope of the budget, and the legal nature thereof shall not be recognized with respect to the restriction on overtime allowances and holiday allowances.

C. The Defendants’ duty to pay excess duty allowance

Therefore, regardless of the scope of budget compiled in accordance with the aforementioned legal principles, the Defendants are obliged to pay the Plaintiffs excess work allowance equivalent to the remainder remaining after deducting the already paid excess work allowance from the amount of the actual overtime work allowance corresponding to the actual overtime work hours.

5. Calculation of the unpaid amount of excess duty allowances;

(a) a basic calculation method;

In full view of the facts recognized as above and the provisions of the relevant Acts and subordinate statutes, the calculation formula is as follows.

Excess working hours on which the overtime duty is unpaid = The total working hours (month) - Working hours under the Local Public Officials Service Regulations (monthly) - The overtime working hours during which the overtime duty is paid.

* The actual working hours (monthly) = the working hours per hour + other excess working hours (time for business trip on a non-day + the emergency mobilization time on a non-day).

* Working hours under the Local Public Officials Service Regulations (monthly) = Work hours in the relevant month under the Local Public Officials Service Regulations - Holidays, vacations under the Local Public Officials Service Ordinance, education period, outing, and early retirement hours

(b) Whether the period of leave on the official holidays is included;

The plaintiffs asserts that when calculating the specific hours of overtime work, the second class and the third class and the second class and the second class and the second class of the fire officers should be excluded from the working hours (monthly) under the Local Public Officials Service Regulations, since the period of leave under the Local Public Officials Service Ordinance or the corresponding period of leave.

Article 4 of the former Fire-Fighting Service Regulations (Presidential Decree No. 18390) provides that "the head of a fire-fighting agency may periodically take a leave of absence on the working day by setting the sequence for workers on the first day: Provided, That this shall not apply to emergency service, except in the case of emergency service," and the service-related rules such as the other fire-fighting officers' vacations (Rules No. 65 of the Rules of the National Fire-Fighting Agency) define the following terms:

B. The definitions of the terms in the main sentence of Table 2. B. Work: The work shall be free to leave from work for a certain period of time separately designated for the purpose of maintaining health, such as recovery of accumulated skin, even though they are on the work day; D. Work hours include full-time work (09:0 to 00 hours on the day from 09:0 to 18:00 hours on the following day), weekly work (09 to 18:00 hours on the following day), night work (18:0 to 09:0 hours on the following day). D. Work hours are to be made freely by a shift worker until he/she starts his/her next work in accordance with a certain plan; (e) work hours are to be taken at least twice at a time;

In full view of the above provisions, it can be seen that the two-class fire officers were on duty in the order of 24 hours of duty and 24 hours of duty, and they were on duty only once, but they were on duty. If the two-class fire officers were on duty and were on duty, they were free to leave from work to maintain their health on the working day, and they cannot be deemed to be included in or equivalent to the two-class fire officers’ temporary leave (the number of the two-class fire officers’ temporary leave shall be also on the working day, and they shall not be excluded from working hours under the Local Public Officials’ Service Regulations because they were on duty or equivalent thereto under the Local Public Officials’ Service Ordinance, but they shall be deemed on the five-day temporary leave day, and they shall not be excluded from working hours under the Local Public Officials’ Service Ordinance (monthly). Therefore, this part of the Plaintiffs’ assertion is without merit.

(c) Whether meal hours and water surface hours are deducted during working hours;

The defendants asserts that the hours of meals and water surface hours in the atmosphere at night should be deducted from working hours, and the actual working hours of the plaintiffs should be calculated.

Even if a worker does not actually engage in work during working hours, such as waiting time, rest time, and water surface hours, if it is not guaranteed to the worker free use as a recess, and if it is actually under the employer's direction and supervision, it is reasonable to view that it is included in working hours (see Supreme Court Decision 2006Da41990, Nov. 23, 2006, etc.).

The following facts can be acknowledged by comprehensively taking into account the overall purport of statements and arguments set forth in Gap evidence 10-1, Gap evidence 11, Eul evidence 15-1 through 4, Gap evidence 16, Gap evidence 17-1, 2, and Gap evidence 18-1 through 7. In other words, in order to prepare for fire, disaster, and other emergency situations, the regular working system is to maintain a regular working system. The regular working system refers to the ordinary work that must be continuously handled for 24 hours, or is in the form of work that is regularly conducted regardless of night, Saturdays and holidays in order to prepare for emergency and serious disaster situations. According to statistics, fire officers arrive at the scene of a fire within 5 minutes or 10 minutes after the occurrence of a fire, the plaintiffs have been under the direction of the fire officer's center's supervision at night and at night training at night, and in light of the fact that the defendants are still under the direction of the employer's first and second night training at night time to ensure five minutes or more.

(d) Books of travel expenses and meal expenses, and of sick class;

Defendant Jeju Special Self-Governing Province and Jeonnam-do claimed that the payment of travel expenses and meal expenses is unfair, since they are inevitable in mobilization of rain-free persons, such as workplace education, fire extinguishment, typhoon damage restoration, etc., the travel expenses and meal expenses are considered to be unfair. However, since travel expenses and meal expenses are in the nature of compensation for actual expenses as stipulated in Article 46(1) of the Local Public Officials Act, they are in the nature of compensation for actual expenses, and they are in the nature of excess service expenses, their purport, legal basis, and contents different

(e) the application of the premium rate;

The defendants asserts that the premium rate under the guidelines for the management of local public officials' remuneration shall also apply to the plaintiffs, so even if the defendants are obliged to pay excess service allowance, it shall be calculated by applying the premium rate.

However, the premium rate under the guidelines for the handling of local public officials' remuneration work, etc. is prescribed for the general public, and it is difficult to see that the provision for the general public can be applied or applied by analogy without any legal basis in light of the difference between the scope and calculation method of excess work allowance for the general public and the present workers. Thus, the above argument that the premium rate should be applied to the plaintiffs who are present workers is without merit.

(f) Calculation of specific excess service allowances payable;

With regard to the recognition of the plaintiffs' actual hours of overtime work, each entry of Eul evidence Nos. 1 (the result of the review of the details of excess duty duty and evidence evidence) and 3-3 (the result of comparison review of each individual and other hours) and 4-4 (the details of excess duty of each individual) in the calculation formula of the above paragraph A, i.e., "other working hours", i., non-regular business trip and emergency mobilization hours, has no dispute between the parties as to whether they reflected the plaintiffs' actual hours of overtime work, and therefore, in relation to other overtime work hours, some of the statements of subparagraph 3-3 and 4 in subparagraph 3-4 are not believed, and they are recognized by some of the statements of the evidence No. 9-1 through 36 (the details of the implementation of each alternate work).

Therefore, the amount of excess service allowances payable according to the actual excess service hours of the plaintiffs is the amount indicated in the "(1) human principal" in the attached Table 1 for the plaintiffs who worked in the Jeju Special Self-Governing Province, and the quoted principal of the plaintiffs 35 for the defendant Seoul Special Self-Governing Province is KRW 7,412,040, and the quoted principal of the plaintiff 36 for the defendant Jeonnam-do is KRW 5,517,540. Further, the amount indicated in the "(2) interest" in the attached Table 1 is the amount calculated at the rate of 5% per annum from the second day of the following month from the date following the date on which the plaintiffs received the excess service allowances of the plaintiffs every month to November 1, 2010.

6. Conclusion

Therefore, Defendant Jeju Special Self-Governing Province has a duty to pay to the Plaintiffs each amount stated in the “(3) aggregate” column of attached Table 1 and each amount stated in the “(1) principal” among them. Defendant Seoul Special Self-Governing Province with KRW 7,710,981 and KRW 7,412,040 among them, Defendant Jeonnam-do with KRW 5,763,108 and KRW 5,517,540 among them. Defendant Jeonnam-do with KRW 36, and KRW 5,517,540 against Plaintiff 36. Since it is deemed reasonable for each of the Plaintiffs to dispute the existence and scope of the obligation, from November 2, 2010 to May 12, 2011, the date following the judgment of this case, which is the date of complete payment, the Defendants’ claim against the Defendants shall be dismissed within the scope of the remainder of the obligation.

[Attachment] List of Plaintiffs: omitted

[Attachment] List 1: omitted

[Attachment] List 2: omitted

Judges Shin Pung-hee (Presiding Judge)