통상임금의 시간적 제한-1임금 산정기-에 대한 대법원 판결 고찰

The ordinary wage has served as a basis for calculation of allowances for overtime, overnight work, and holiday work. In early-mid 90's, the Supreme Court had consistently ruled for seven times that any particular allowances or bonus, etc. may be paid for a period of exceeding one month should not be included in calculation of ordinary wages, because “ordinary wages” refers to the fixed wages amount to be paid within a period of wage calculation (i.e. one-month period). In light of those Supreme Court's decisions, it is reasonable to infer that the period for ordinary wages are calculated is inherently fixed in its nature in a way that (i) it is apparent that ordinary wages have to be calculated within a certain period of time (i.e. one-month) under Labor Standards Act of Korea (“LSA”) and Enforcement Decree of LSA, (ii) its fixed nature of the period of wage calculation is embedded in a dictionary definition of “ordinary” and basis of calculating overtime allowances, and (iii) LSA had modeled the Labor Standards Act of Japan which excludes any allowances paid for a period of exceeding one month in calculation of ordinary wages. However, the Supreme Court overturned the previous ruling that any type of allowances paid for a period of exceeding one month are not included within the scope of ordinary wages and radically changed its view in a decision on Medical Insurance Union case in 1996 (Supreme Court ruling on Feb. 9, 1996: 94da19501; “Medical Insurance Union case”). In Medical Insurance Union case, the Supreme Court reasoned that even though a particular allowance paid for period of exceeding one month, if it is paid regularly and uniformly, this component can be included in ordinary wages, and found annual and/or semi-annual exercise and winter-preparation allowances shall be considered ordinary wages. Following this decision, the Supreme Court has expanded the scope of ordinary wages and finally has ruled that periodic bonuses paid for a period exceeding one month (i.e. quarterly bonuses paid in question), which were never included in ordinary wages and were therefore not considered in the calculation of ordinary wages, may be properly includable as part of ordinary wages in a decision on Mar. 29, 2012 (Supreme Court ruling on Mar. 29, 2012: 2010da91046; “Keum-A Limousine case”). As the Supreme Court has ruled that any allowances paid for a period exceeding one month is included within ordinary wages in Medical Insurance Union case, it have had very significant side-effects on employment relations without any legitimate justifications and may also necessitate reconsideration of the fixed nature of wage calculation in a way that (i) ordinary wages cannot be used as a basis of calculating overtime allowances any longer and it also goes against the aim of legal definition of ordinary wages, (ii) at the perspective of comparative laws, not only Japan expressly excludes any allowances paid for a period exceeding one month from ordinary wages, but also Germany and the U.S. does not include annual allowances within ordinary wages, (iii) this was a decision by a panel, rather than by the full court which is in violation of Court Organization Act of Korea, (iv) it is unacceptable to reasonable and conscientious practitioners (i.e. both of employers and employees) and also against social justice, (v) the current uncertainty and controversy over this issue, and the proliferation of lawsuits seeking clarity, and (vi) it is estimated that corporates' increased labor cost resulting from the judicial expansion of the ordinary wage will be over 38 Trillion Korean Won, and it will have a massive impact on small and medium-sized enterprises and they may come to incur huge amounts of contingent liabilities. It is also important to note that this Medical Insurance Union case was decided by only a panel without any legitimate grounds and there is no single commentary or explanatory note, prepared by Supreme Court judicial researchers, available for interpretation of this decision. Evidently, the Supreme Court had given more weight to this new decision than past cases thereafter and in turn it led to an inclusion of bonuses, which is of great importance within ordinary wages. Accordingly, it seems likely that a unanimous decision by the Supreme Court is necessary to clarify and secure legal validity on the fixed nature of wage calculation period, and further provide a judicial remedy for current confusion and disputes over employment relations and corporate managements. Together with this en banc review of the Supreme Court, we expect the Supreme Court recognizes the injustice of preceding cases where it have ignored and eliminated the fixed nature of a period of wage calculation, and revisit the implicit reasoning in the precedents prior to the Medical Insurance Union case, and remand for further determination to ensure universal validity and solve current disputes over ordinary wages.