명절상여금의 통상임금성과 통상임금소송에서의 신의칙항변- 대법원 2021. 12. 16. 선고 2016다7975 판결을 중심으로 -

The Korean Supreme Court recently rendered an important decision with regard to the jurisprudence on ordinary wages. The Court’s opinion was laid out in its decision rendered on December 16, 2021 in its case of “2016Da7975”. This decision covered two important issues: One is whether holiday bonuses are considered as ordinary wages; the other is whether or not to acknowledge the principle of trust and good-faith as a valid counterargument in an ordinary wage lawsuit for claiming regular bonuses. First, the Supreme Court held that holiday bonuses constitute as ordinary wages, even though the retired employees were not actually paid through a customary fashin in pro rata per days worked. The main reasons for this decision were that the applicable rules of employment had set the payment period to the year before the retirement, which was to be paid in pro rata per days worked and calculated at the time of termination. This decision is contrasted with its previous Supreme Court decision 2012Da94643 which held that holiday bonuses are not considered as ordinary wages. The difference can be interpreted as the recent Supreme Court decision did not overlook the ordinary wage nature of the holiday bonuses – not solely basing it on the formality of its holiday bonus payment status – but rather the Court applied a more pragmatic approach by practically treating the holiday bonuses withen the confines of regular bonuses. The decision can be regarded as appropriate. Second, the Supreme Court rejected the principle of trust and good-faith counterargument raised in ordinary wage claim for regular bonuses. The main points of the decision on the second issue are as follows: 1) the decision maintained the legal principle held in the Supreme Court decision of 2015Da217287, i.e., that the principle of trust and good-faith counterargument in an ordinary wage lawsuit should be strictly limited; 2) the decision rendered a new legal principle in that the factor of serious financial difficulties of a company cannot be decided based only on the circumstances discovered at the end of the fact-finding process. Rather, the issues of consideration should be whether the employer was able to foresee the possibility of its future financial difficulties; and whether the employer was able to overcome these difficulties thereafter; and etc,; and 3) the decision specifically discussed certain other factors regarding the serious financial difficulties of a company such as the extent of additional legal allowances, business profits, then-current net profits, and etc. It can be said that the reasoning behind the holding that the principle of trust and good-faith counterargument in ordinary wage lawsuits should be restricted limited, has been correctly rendered. The basis of the Court’s holding are as follows: 1) there are no reasons attributable to the employees; and 2) there is a strong need to establish the nature of mandatory provisions in the Labor Standard Act for the goal of protecting the employees. However, in my opinion, the principle of trust and good-faith counterargument in ordinary wage lawsuit claiming regular bonuses could have been rejected as well on the ground that there is no existing trust that is worth protecting because: 1) the concept of employer’s trust on regular bonuses did not constitute ordinary wages has disappeared after the Supreme Court decision 2012Da89399; and nonetheless; 2) the employer has delayed - by its own negligence - the payment of additional legal allowance, and its result, incurred the serious financial difficulties, the trust of which should not be protected; and therefore, the trust and good-faith counterargument could have been rejected by the Court.