신의칙에 의한 임금청구권 부인의 문제점 검토 — 대법원 2013.12.18. 선고 2012다89399 판결에 대해 —

At the end of the 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 Wages(Supreme Court Ruling on December 18, 2013, 2012da89399). However, there have been some controversies around the logic of the Ruling. Among several controversies, I’ve reviewed on the problems of the Denial of Wage-claims Right with the Principle of Good Faith (Prinzip von Treu und Glauben). The Ruling, in short, sentenced that claims of additional extra wages due to inclusion of regular bonus into ordinary wage would result in unexpected, excessive costs to the company, leading to severe managerial difficulties, which cannot be acceptable in light of the notion of justice and equity, so in this type of situation, the employee’s claim is not granted due to it being a violation of Principle of Good Faith. For reference, LABOR STANDARDS ACT stipulates about overtime payment as belows; Article 56 (Extended, Night or Holiday Work)An employer shall, in addition to the ordinary wages, pay 50 percent or more thereof for extended work (work during the hours as extended pursuant to Articles 53 and 59 and the proviso of Article 69), night work (work between 10:00 p.m. and 6:00 a.m.), or holiday work. Besides, CIVIL ACT stipulates about the Principle of Good Faith as belows; Article 2 (Trust and Good Faith)(1) The exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith.(2) No abuse of rights shall be permitted. Despite of the Ruling, I’ve asserted that it’s irrational to deny employee’s Wage-claims Right with Principle of Good Faith. In this paper, in order to prove the logical and legal flaws of the Ruling by Supreme Court(majority opinion) I've described several points demonstratively including some viewpoints in the minority opinions of the Ruling. Especially, the Ruling(majority opinion) has critical defects in that it invalidate the validity of compelling articles with Principle of Good Faith, ultimately denying employee’s Wage-claims Right which are guaranteed by CONSTITUTION and LABOR STANDARDS ACT. In this point, the Ruling (majority opinion) is a contradiction to commonly-held opinions of most legal scholars and a cotravention to judicial precedents about Principle of Good Faith, and it could severely ruin the legal stability because of the conceptual vagueness and obscurity "severe managerial difficulties", "dangerousness of subsistence of the company", those are conditions of applying Principle of Good Faith. And the Ruling(majority opinion) includes several defects comprising misjudgments about factual and legal relations in applying Principle of Good Faith. Some exemplary points of those defects are as belows(my own opinion not mentioned in minority opinion);Firstly, the assertion that Principle of Good Faith could invalidate the compelling articles is irrational, judging from the intrinsic-logical point of Principle of Good Faith. Secondly, the assertion that employee’s Wage-claims Right guaranteed by compelling articles is not granted due to it being a violation of Principle of Good Faith is against the original purpose of Principle of Good Faith. Thirdly, the assertion that Principle of Good Faith could invalidate the compelling articles is a cotravention to judicial precedents. Fourthly, the assertion that wage-negotiation between Labor- Management inevitably is based on the limited profits of company is wrong. Fifthly, the assertion that if Labor-Management knew that regular bonus could be ordinary wages Labor-Management should have done fairly different wage-negotiation is wrong. Sixthly, the assertion that Principle of Good Faith could correct the results originated from mistakes of the parties concerned in a legal action is wrong. Besides of the above-mentioned defects, I think that the Ruling comprises several unconstitutional points in that it infringes upon the Right to Pursue Happiness, the Right to use one's own discretion that are guaranteed by Constitution, and in that it violates The Labor- Management Autonomy, The Principle of Freedom of Contract that are stipulated in Constitution. In conclusion, I've suggested that the Comprehensive Solution which comprises the abolition of the Ordinary Wage System and the acceptance of the new alternative Criteria-Wage System prefering Labor-Management Autonomy should be adopted to resolve the fundamental problems of the Ordinary Wage.