통상임금 관련 2013년 전원합의체 판결의 의미와 평가

In its two recent decisions on Dec 8, 2013 (2013. 12. 18. 2012DA89399, and 2013.12.18. 2012DA94643), the Korean Supreme Court has set out detailed standards on the previously contested regular wage rate, and it also set out the standards for when the worker's request for additional payment is void as against the principle of good faith in civil law. As for the first part of the court decision - ‘periodicity’ and ‘consistency’ element of the regular wage rate - the court has maintained its previous rulings on this topic. Meanwhile, as for the ‘fixedness’ element of the regular wage rate, the decision mentioned that “determining fixedness in advance” is the pivotal standard; thereby overcoming the rigidity in its previous discussions. However, it is problematic that this decision has also mentioned that when a working requirement is attached, fixedness element may not be found in such circumstances; this part may fuel labor-employment conflict in the future. This article criticizes this part, arguing that working requirement fits in the consistency element, and even when the worker resigns during the term of employment, it should not affect the worker's regular wage rate. This article also suggests that the court should not have resorted to the principle of good faith; there are both legal and factual reasons why it should not be that way, and the author suggests alternative ways of applying the principle.