태업과 임금지급 등의 관계에 관한 대법원 2013.11.28. 선고 2011다39946 판결에 대한 검토

If a worker takes part in a strike, s/he cannot receive the wage of that period by the rule of no work no pay. Then what about soldiering? Soldiering is different from strike in that it is characterized of imperfect performance of work. Therefore, theoretically it is not legitimate to reduce wages of whole period of soldiering of its participants. However, recently the supreme court ruled in the Decision 2011Da39946 that in the case of soldiering, the question of wage giving should be dealt same as the case of strike by the rule of no work no pay. This is the first case that the supreme court showed its opinion on the question of wage giving in soldiering case. And the supreme court has also said that although basically the way to reduce wage in soldiering case should be decided by the degree of individual imperfection of performance of work, sometimes it is legitimate to reduce all wages of whole soldiering period by accepting the degree of imperfection of performance of work as 100%. This article has analyzed the normative meanings of soldiering by reviewing critically the recently sentenced supreme court decision.