현행법상 임금의 본질과 통상임금에 관한 연구 ― “임금”, “근로시간”, “소정근로”의 개념적 도구를 통한 분석 ―

According to the supreme court decision in December 18, 2013, the greater part of long-standing debate on regularity and flat basis of the ordinary wage was cleared up. However, as the supreme court granted the good faith principle and the opinion that the fixedness is the element of the ordinary wage, the issue of fixedness and good faith principle is emerging as new battlefields of debate on the ordinary wage. Thus, in this paper, I made a close study on the several practical problems of the ordinary wage that have happened in the practical field after the supreme court decision in December 18, 2013, and also researched on the way of the universal defining concept and delimiting scope of the ordinary wage in the viewpoint of fit for purpose. To be specific, I examined about the fundamental object of wages and the undertone of working hours relating to the wage under the current labor law system and then also examined the standard of the ordinary wage thoroughly in aspect of legal consistency. And I examined the fixedness more specifically that is controversial issue of the ordinary wage based on the standard that was discussed earlier, and furthermore, I reviewed on the intrinsic aspect of the fixedness toward satisfying the rationality and consistency. Meanwhile, after the supreme court decision in December 18, 2013, many theories that criticize the supreme court's legal opinion have been suggested in academia, most of them have been treating the illegality of the supreme court's instruction exemplifying a lack of fixedness - i.e. “wage connected to specific period of service” or “wage payable that is additionally conditioned on fulfillment of certain additional working days beyond the contractual work” - and I also agree to those theories' intent in principle. However, I regarded that if those theories discuss in one direction only, they must come into conflict with liberty of contract. Therefore, I put a great emphasis on the solution plan about those matters. In addition, I researched on the common law and de lege ferenda issues to raise the legal stability and rationality of wage system in the conclusion of this paper. The gist of this paper is as follows. ① An employer must pay wages to their employee per working hour, because the working hour is a basic exchange unit of wage. ② To determine whether a wage is an ordinary wage or not, it is necessary to interpret mainly whether contracting parties intend that the wage is a payment related to the specifically agreed work, and then necessary to interpret subsidiarily whether the wage is paid regularly and uniformly. ③ It is more proper that the fixedness is classed as an internality of paying for specifically agreed work rather than independent requirement of the ordinary wage. Thus, if it is determined whether a wage is the paying for specifically agreed work, the fixedness is automatically determined, and then it is also determined whether the wage is an ordinary wage. ④ Even if the negative clause, such as “wage connected to specific period of service” or etc, is fixed to the employment contract, because the accessory clause is illegal and invalid as far as the wage is paid for the specifically agreed work, the employer must give a payment by working hour. And thus, if the employer withholds wages only based on that accessory clause, that must be treated as the matter delayed payment of wage violating the Labor Standards Act. (specifically, it is a violation of Articles 36, 43)