통상임금관련 대법원 전원합의체 판결 검토 － 통상임금 배제합의 무효판단의 위헌성 －

These days, in Korea, there have been big controversies over the Ordinary Wage in the LABOR STANDARDS ACT. In fact, the problems of the Ordinary Wage had been included in the LABOR STANDARDS ACT since the Act was legislated after the model of Japanese LABOR STANDARDS ACT. And, despite of much efforts of the Judiciary and the Government officials and many legal scholars, the problems are not resolved yet and many law-suits have been filed and much legal arguments have developed into serious Labor-Management Disputes. At the end of last year(December 18th, 2013), the Supreme Court(All Judge-attending Court) had passed an important Judgment to resolve the long-time legal arguments on the Ordinary Wage. However, despite of the long and detailed sentences of the Judgment, there have been some controversies around the logic of the Judgment. Among several controversies, I’ve reviewed the issue of the Unconstitutionality of the Judgment. To clarify the problems, firstly in this thseis, I've reviewed the fundamental problems of the Ordinary Wage by way of comparing Ordinary Wage related articles in the Korean LABOR STANDARDS ACT with the corresponding articles in the Japanese LABOR STANDARDS ACT and discovered several critical legal deffects in the korean LABOR STANDARDS ACT. For example, the Korean Act has the article about the definition of Ordinay Wage which was stipulated with several abstact and ambiguous concept-factors like "periodicity", "uniformity", etc. Besides, I've found that these concept-factors like "periodicity", "uniformity", etc. have irrational points which are inappropriate to be used for building the definition-article of Ordinay Wage. For reference, the ENFORCEMENT DECREE OF THE LABOR STANDARDS ACT stipulates Article 6 as belows;Article 6 (Ordinary Wages)(1) For the purposes of the Act and this Decree, the term “ordinary wages” means hourly wages, daily wages, weekly wages, monthly wages, or contract wages which are determined to be paid periodically or in lump sum to a worker for his/her prescribed work or whole work. (2) In case of calculating ordinary wages under paragraph(1) at hourly rates, the amount shall be calculated pursuant to the following subparagraphs:1. - 7. (omitted)(3) In case of calculating ordinary wages under paragraph(1) at daily rates, the ordinary wages shall be calculated by multiplying the number of contractual working hours per day by hourly wage rates prescribed in paragraph (2). The Supreme Court(All Judge-attending Court) had judged that the mutual agreement between Labor and Managemet to exclude some items of the wage from assessing the Ordinary Wage is legally null and void, because of the violation of the Definition-Article of the Ordinary Wage in THE ENFORCEMENT DECREE OF THE LABOR STANDARDS ACT. So to speak, with regard to the interpretation of this article, The Supreme Court(All Judge-attending Court) decided that the term of Ordinary Wage should be judged by the concept-fators(in German, Merkmal) of the peoriodicity, uniformity, stability. So, The Supreme Court(All Judge-attending Court) decided that the agreements excluding the items of wage which meet these concept- factors(peoriodicity, uniformity, stability) are legally null and void. However, I think that this Judgment is unconstitutional because of the violation of The Labor-Management Autonomy, The Principle of Freedom of Contract, the Right to Pursue Happiness and the Right to use one's own discretion, market-economy order that are guaranteed by the Constitution. And I've proposed that the Ordinary Wage System in the Act should be abrogated and a new alternative Criteria-Wage System should be entrusted with the Labor-Management Autonomy System as the Comprehensive Solution of the Ordinary Wage Problems