정기상여금에 붙은 ‘지급일 재직 조건’의 문제점 — 대상판결: 대법원 2017. 9. 26. 선고 2017다232020 판결 —

In December 2013, the Supreme Court ruled in detail a standard of judgment on ordinary wages in two of Supreme Court en banc decision about KB AutoTech cases. According to one of the two decisions, Dec 18, 2013 pronounced, 2012da94643 sentence, the payment of wages to incumbent workers at a certain point in time would be not ordinary wages because that is not fixed. Since the Supreme Court ruling, it has been argued whether regular bonus with similar conditions corresponds to ordinary wages in many the Lower Courts and different judgments have been made on similar issues. In the two sentences ruled on Sep 27, 2017, the Supreme Court concluded that regular bonus paid only to workers who are employed as of the date of payment was not a normal wage even if the workers provided the work. Because the Supreme Court judged it was not recognized as rewards of contractual working and not fixed. In Korea, it could basically explain that regular bonus, calculated by multiplying the fixed rate on the basic wage, is merely paid at regular intervals by being accumulated to correspond to the fixed work schedule. Therefore, regular bonus is paid for contractual working and can not be accepted in the concept of a bonus in the strict sense. That means regular bonus of fixed type payment is a deferred payment wage paid later after accumulating rewards of contractual working for months. So regular bonus of that type is under the principle of regular payment on wages and such a payment system would be invalid because of violation the Labor Standards Act. In accordance with a principle of the conversion of invalidity, it may be only accepted as a contract to pay regular bonus to the regular monthly payment schedule. The addition of the condition of ‘incumbent condition’ to regular bonus violates the provisions of the Labor Standards Act. Thus, if the incumbent condition added to the regular bonus of fixed wage type means it would be not paid to the full extent of the regular bonus, that condition may be invalid as unlawful condition. It can only be interpreted that the portion corresponding to the period which is not providing the predetermined work would be reduced and not be paid.