Plaintiff 1 and one other (Attorney Choi Jae-ho et al., Counsel for the plaintiff-appellant)

Public Official Books (Attorneys Lee Jae-sik et al., Counsel for the defendant-appellant)

June 7, 2018

Suwon District Court Decision 2016Gadan22912 Decided August 11, 2017

1. All appeals by the plaintiffs and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay to the plaintiff 1 29,477,95 won, 44,416,770 won, and 20% interest per annum from December 12, 2015 to the day of complete payment.

2. Purport of appeal

A. The plaintiffs

Of the judgment of the first instance, the part against the plaintiffs falling under the part ordering payment is revoked. The defendant shall pay to plaintiffs 1 24,096,625 won, 34,814,851 won, and 20% interest per annum from December 12, 2015 to the day of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiffs' claims corresponding to the revocation shall be dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for any parts written or added below. Thus, this Court’s reasoning is cited pursuant to the main sentence of Article 420 of the Civil Procedure Act

2. Parts to be dried;

The 6th to 12th of the first instance judgment shall be subject to the following parts:

1) Whether the plaintiffs' special lecture hours can be viewed as contractual work hours

In light of the following circumstances, which can be recognized by comprehensively considering the overall purport of Gap evidence 6, 7, and Eul evidence 18 (including each number), the defendant determined whether to implement the special lecture and allocated the special lecture hours to the instructors by receiving the questionnaire from the students, the special lecture was conducted for about seven months immediately before March or April of each year, and the special lecture was conducted using the defendant's facilities, and it seems inevitable for the defendant to decide whether to conduct the school and the time was conducted. The defendant's driving school was operated in the form of a deliberative school, and the regular time table was operated in the form of a deliberative school, but all students did not hear the special lecture, and the 50% of the tuition fees paid by the students based on the regular class of classes was paid to the instructors according to the number of classes, since the plaintiffs' special lecture in the status that the plaintiffs continued to provide them to the defendant with the special lecture hours, it cannot be deemed that it constitutes a specific class work hours of the plaintiffs.

3. The addition;

A. Regarding the extinctive prescription of weekly holiday allowances

The following shall be added after the 16th day of the first instance judgment:

The plaintiffs asserted that there was a special circumstance that had not been able to exercise their rights prior to the extinctive prescription, because they became aware of the fact that they could claim weekly holiday allowances through the petition of the Labor Agency.

However, when it is deemed that the extinctive prescription cannot progress while it is impossible to exercise the right, the term “non-exercise of the right” refers to a cause of disability in the exercise of the right, such as a cause of disability in law, for example, a case where the existence of the right or the possibility of exercise of the right is not known, and even if there was no negligence by failing to know the existence of the right and the possibility of exercise of the right, such cause does not constitute a cause of disability under law (see Supreme Court Decision 2015Da21220, Sept. 10, 2015, etc.

(b) Matters concerning claims for retirement allowances;

The following shall be added to the 13th 14th tier judgment:

The plaintiffs asserted to the effect that it is unfair to determine whether the plaintiffs' claim for retirement allowance occurred on the basis of the reduction of the time limit per week from September 2015 to around March 2015, the defendant retired several months, and the reduction of the time limit per week from March 2015 to KRW 13,00. The plaintiffs asserted to the effect that the determination of whether the claims for retirement allowance occurred should be made on the basis of the daily working hours before September 2015 and the time limit per week before March 2015.

However, there is no evidence to prove that the Defendant had intended to avoid the obligation to pay retirement allowances from around September 2015, and rather, according to the overall purport of the statements and arguments in the evidence Nos. 6, 7, 9, 10, and 11 (including the various numbers), the fact that the number of lessons from September to November 2014 is less than that of the previous month can be recognized, so the fact that the number of lessons from September 2008 to November 2014 is less than that of the previous month, there are circumstances in support of the Defendant’s assertion that the number of lessons from November 201 may be reduced if lessons are difficult.

In addition, there is no evidence to deem that the Defendant’s reduction of the fee per hour from March 2015 to March 13, 200 won constitutes an exceptional case where average wage is significantly less than that of ordinary wage.

Therefore, this part of the plaintiffs' assertion is without merit.

C. Defendant’s assertion of deduction

The following shall be added to the 13th 19th 19th 19th :

The defendant asserts that, as the defendant paid weekly holiday allowance or annual holiday work allowance to the plaintiffs by granting them the time limit without attending the Plaintiffs on the regular holiday day and maternity examination day, the paid allowance should be deducted as above.

According to the overall purport of the statements and arguments in the evidence Nos. 19 through 22, the defendant may recognize the fact that the defendant paid the benefits by recognizing the plaintiffs' class hours on some regular holidays or mother death days. However, the above evidence alone is insufficient to recognize that the above payment of the benefits is paid to the plaintiffs a weekly holiday allowance or annual holiday work allowance, and there is no other evidence to acknowledge it.

Therefore, the defendant's assertion of deduction is without merit.

4. Conclusion

Therefore, the judgment of the first instance is just, and all appeals by the plaintiffs and the defendant are dismissed as it is without merit. It is so decided as per Disposition.

Judge Park Young-young (Presiding Judge)