Whether the Labor Standards Act of the Republic of Korea applies to the case where a party to a labor contract is a national or corporation of the Republic of Korea and it was concluded within the territory of the Republic of Korea,

If both parties to a labor contract are Korean nationals or corporations, and the initial labor contract was concluded within the territory of the Republic of Korea and the contract was written in Korean and Chinese characters, it shall be deemed that there is an implied agreement to apply the law applied to the above labor contract by the law of the Republic of Korea.

Article 9 of the Conflict of Laws and Article 10 of the Labor Standards Act

Supreme Court Decision 73Da1140 Delivered on March 12, 1974

Plaintiff 1 and 12 others

Korea Commercial Corporation

Seoul Central District Court (71 Gohap688) in the first instance trial

1. The part concerning plaintiffs 1, 2, 3, 4, 5, and 6 in the original judgment and the part against the defendant against the plaintiffs 7, 8, 9, 10, 11, 12, and 13 shall be revoked.

2. Each of the plaintiffs' claims is dismissed.

3. The costs of lawsuit are assessed against all of the plaintiffs in the first and second instances.

The defendant shall pay to the plaintiffs the amount of money in the corresponding column of attached Table (Ha) and the amount at the rate of 5 percent per annum from January 1, 1971 to the full payment.

The judgment that the costs of lawsuit shall be borne by the defendant and a provisional execution declaration are declared.

The defendant is awarded the same judgment as the disposition of the court.

1. There is no dispute between the parties as to the facts that the plaintiffs provided labor to the defendant as crew or engineer for the defendant during the period of the month in the attached Table (A) in the Republic of South Korea under employment by the plaintiffs, and that the amount listed in attached Table (c) was received each month from the defendant. The plaintiffs' monthly wages listed in the above paragraph (c) are ordinary wages and do not include extension allowances, night allowances, monthly and annual paid leave allowances under the UN Labor Standards Act. Thus, the defendant's assertion that the plaintiffs sought payment of non-paid allowances during the remaining period of the contract as in the first case cannot be applied to the case where the plaintiffs provided labor abroad as in the second case, and the Labor Standards Act of the Republic of Korea is not applicable to the above monthly wage paid by the defendant as well as all kinds of allowances as claimed by the plaintiffs.

First, according to Article 9 of the Conflict of Laws Act, the establishment and validity of a legal act shall be determined by the parties' will and the law of the place of the act shall be applied when the parties' intent is not clear. In this case, as follows, if all the parties to a labor contract are all citizens or corporations of the Republic of Korea, the first labor contract was concluded within the territory of the Republic of Korea, and the contract was written in Korean and Chinese characters, it shall be recognized that there has been an implied agreement to apply the law to the above labor contract as a law of the Republic of Korea, and there is no data contrary to the above recognition, so the law applicable to the labor contract in this case shall be deemed as the Labor Standards Act as a domestic law.

2. Labor contract and details of labor;

In light of the facts of Gap's evidence 1 to 13, Eul's evidence 1 to 6, Eul's evidence 1 to 10 (each of the above 3-day hours of work: The defendant, who is a Korean corporation, has provided the above 1-day work to the defendant for 0-day work, 1-day work, 3-day work, 5-day work, 1-day work, 1-day work, 3-day work, 1-day work, 4-day work, 5-day work, and 3-month work, 1-day work, 2-month work hours from 0-day work hours to 3-month work hours, 1-day work hours from 0-day work hours to 1-month work hours from 0-day work hours to 3-month work hours, 1-month work hours from 0-day work hours to 3-month work hours from 1-month work hours to 1-month work hours, 3-month work hours, and 9-month work hours.

The plaintiffs' above contract for night work was signed and sealed by the defendant in advance for 260 hours per month and received the amount as stated in attached Table (C) above. The plaintiffs' seal 10 hours per month after signing the contract at the same place was finished between 1,20 minutes per month and the defendant's office worker's seal 6 hours per month. The above contract for night work was made under unstable circumstances, and there was an extension, parking, and monthly allowance calculation table as wages table in attached Table 3, but the above contract for night work is no basis for 6 hours per month. If the above contract for night work is revised by 10 hours per month, the amount of monthly remuneration is different from the above contract for the same person's work, and if the above contract for night work is increased by 3 hours per month, it is hard to find that the above contract for night work is invalid by 5 hours per month, and it is so long as there is no disagreement between the plaintiffs and the above contract for overtime work and 4 hours per month's previous work.

Therefore, the plaintiffs and the defendant may agree on the amount of various allowances for which the plaintiffs seek, and recognize that there is a number of allowances as allowances under the agreement. However, if the amount falls short of the amount guaranteed to workers under the Labor Standards Act, the plaintiffs can claim against the deficiency. Therefore, the plaintiffs' claims that are recognized under the Labor Standards Act based on the basic wage shall be calculated and considered.

(1) Ordinary ordinary wages

According to the provisions of Article 24 (4) of the Enforcement Decree of the Labor Standards Act and Article 31 (4) of the Enforcement Decree of the current Labor Standards Act, with respect to the wages determined in monthly wage at the time when the labor contract is in force, which serve as the basis for calculating the various allowances claimed by the plaintiffs, the amount calculated by dividing that amount by the number of contractual work hours per month is the ordinary wage. Since the contractual work hours of the plaintiffs are 260 hours per month, the amount of money listed in attached Table (e) (each basic wage ± 260) shall be calculated respectively in calculating the ordinary wage per hour according to each basic wage of the above wage list.

(2) Extended allowance

The facts that the plaintiffs had worked for more than 40 hours per month are as seen earlier, so the defendant should pay the plaintiffs a overtime allowance of more than 50/100 of ordinary wages according to Article 46 of the Labor Standards Act, which is added to the ordinary wages of more than 50/100. The calculation by each of the plaintiffs is based on the amount set forth in attached Table (f) x 40 hours x 1 + (50/100).

(3) Night work allowances

As seen earlier, the plaintiffs should pay night work allowances in addition to 50/100 of ordinary wages pursuant to Article 46 of the Labor Standards Act, since they worked as night work every day (in the case of day-work work) or every other day every day (in the case of day-work work), 6 hours and 30 minutes every day. Accordingly, the amount of money listed in the attached Table (g) shall be calculated respectively (1 hour ordinary wages x 6.5 hours x 15 days x 50/100).

(d) monthly and annual paid allowances;

According to Articles 47 and 48 of the Labor Standards Act, an employer shall grant an employee a paid leave of 8 days on a monthly basis and a paid leave of 1 year to a worker. Since the fact that the rest of the plaintiffs except the plaintiffs 7 continued to have worked without using the paid leave during the work period is as seen earlier, the defendant must pay the plaintiffs (except the plaintiffs 7) wages under Article 24-3-2 of the Enforcement Decree of the Labor Standards Act, which was in force at the time when the labor contract was in force, and the ordinary wages for the pertinent paid holiday (10 hours a day) except the wages already paid in basic wages, among the ordinary wages for the pertinent paid holiday work, and the prescribed ordinary wages for the pertinent paid holiday (10 hours a day) other than those already paid in basic wages, the monthly paid leave allowance shall be the amount (10 hours a day x 10 hours a day x 10 hours a day x 10 hours a day x 10 hours a day x 12 hours a day x 10 hours a day x 12.

Therefore, it is clear that the sum of the total wages (including weekly holiday allowances not claimed by the plaintiffs) including overtime work allowances, night work allowances, monthly and annual paid leave allowances calculated in accordance with the criteria set by the Labor Standards Act does not exceed the amount set forth in the attached Table (other) that the plaintiffs actually received.

3. Determination on the remaining claim for non-paid allowances during the contract period

In addition to all allowances recognized as above, if an employer intends to dismiss a worker under Article 27-2 of the Labor Standards Act as the cause of the claim, the employer must dismiss the worker at least 30 days prior to the date of the claim, and if the worker is dismissed under Article 38 of the Labor Standards Act, the employer shall pay at least 30 days' ordinary wages. In addition, under Article 38 of the Labor Standards Act, the employer shall pay at least 60/100 of average wages for the worker during the period of suspension of business, and even if the last renewed contract period of the above plaintiffs from July 1, 1970 to June 30, 1971, the defendant did not give any prior notice of dismissal, and even if the last renewed contract period of the above plaintiffs was from July 1, 1970 to June 30, it is reasonable to pay the above plaintiffs' remaining 60/100 of average wages for the period of 60/100 of the contract under Article 38 of the Labor Standards Act.

However, as alleged in the above, it is evident that the termination of an employment relationship by the employer's dismissal does not fall under the suspension of business due to the reasons attributable to the employer as stipulated in Article 38 of the above Act. Thus, the claim for unpaid allowance for the remaining period of the above plaintiffs is groundless without examining the remainder. Even if the above plaintiffs' claim is viewed as a claim for dismissal allowance under Article 27-2 of the above Act, the above plaintiffs' assertion that the defendant unilaterally dismissed the above plaintiffs without any prior notice does not have any evidence to acknowledge it except the portion of the testimony of plaintiffs 2, 3, 4, 5, and 3 of the court below's decision that did not believe that the above plaintiffs were members of the company, and there is no evidence to acknowledge it except the portion of the testimony of the plaintiff 2, 3, 4, 5, and 11-3 through 5 of the evidence 1, 11-2, and 12 of the above Act, in dismissing the above plaintiffs, at least 30 days prior to that time, or before that time.

4. Therefore, the part of the judgment below which accepted part of the plaintiffs 1, 2, 3, 4, 5, and 6's claims, and the part of the judgment below which accepted the plaintiff 7, 8, 9, 10, 11, 12, and 13 as to the plaintiff 1, 2, 3, 4, 5, and 6's claims are without merit. Since the defendant's appeal has merit, the judgment of the court below as to the above quoted part is revoked, and the plaintiffs' claims as to the above quoted part are dismissed, and the costs of the lawsuit are borne by the plaintiffs who lost by applying Article 96, 93 (1), and main sentence 89 of the Civil Procedure Act

Judges Jin-hun (Presiding Judge)