통상임금에 대한 판례법리의 재검토 ― 정기상여금(대법원 2012. 3. 29. 선고 2010다91046 판결)을 중심으로 ―

When Korean Labor Standards Act was legislated, there was no definition of ordinary wage. In 1982, by amending the Act, the regulation of current ordinary wage was introduced in the Enforcement Decree of the Labor Standards Act. “Ordinary Wage” is the lexical and instrumental concept in order to technically calculate various benefits such as additional wages, i.e. allowance for holiday, extended or night work. Ordinary wage requires “regularity” and “uniformity” and excludes temporary and fluid characters from the calculation basis for ordinary wages. Moreover, contrary to average wage that is regulated in the Act, ordinary wage is prescribed in the Enforcement Decree of the Act. These two points provide some support for the concept of ordinary wage. In spite of the purpose of legislation, however, since the systems of annual salary and the fixed amount of bonus were introduced, the judgment criteria towards ordinary wage became somewhat vague. In accordance with this ambiguity, there are some cases such as changing the title of various allowance or making irregular payment date so as to avoid wage increase. To rectify the situation, in 1996, Supreme Court Decision judged about the ordinary wage by adding the essential factor of “fixity(fixed wage)” to regularity and uniformity. Yet, the content of judgement index is near to the characteristics of wage rather than the characteristics of ordinary wage. However, the stances between administrative interpretation and judicial ruling are different regarding the framework how to judge the ordinary wage. Furthermore, the principle of judicial decisions lacks consistency as well, so it gives rise to many confusions to handle problems and practical affairs related to labor. In severe cases, there are constant legal disputes over the confusions. Under these situations, many enterprises are trying to explore measures to save themselves through the agreement between labor and management or the collective agreement by determining matters pertaining to wages. Also, the enterprises are dealing with the ordinary wage according to authoritative interpretation or guideline of Ministry of Employment and Labor. Notwithstanding, the judicial decision reversed the tendency of existing judicial precedents and guidelines of Ministry of Employment and Labor, therefore, it would have far-reaching implications for enterprises. Hence, in order to prevent confusions and to minimize unnecessary disputes with regard to the calculation of ordinary wage, it is desired to make legislative settlements by stipulating the definite judgment criteria of ordinary wage in Labor Standards Act. However, since the legislative settlements are very time consuming, the court needs to embrace the guideline of Ministry of Employment and Labor which is in charge of problems and issues in relation to labor. In addition, if the settlement between labor and management and practice of labor and management pursuant to the negotiating autonomy are not against social rules, respecting them will be good solutions as well.