통상임금과 고정성 - 대법원 2024. 12. 19. 선고 2020다247190 전원합의체 판결과 대법원 2024. 12. 19. 선고 2023다302838 전원합의체 판결을 중심으로

The Supreme Court established the ordinary wage doctrine requiring fixedness, defining fixedness as pre-confirmation in en banc Decision 2012Da89399 and en banc decision 2012Da94643 decided on December 18, 2013 (previous precedents). Previous precedents stated that compensation tied to holding the position or wages based on days worked did not constitute ordinary wage on the grounds that they lacked fixedness. However, these judgments came under fire by a number of lower courts and theories. In en banc Decision 2020Da247190 and en banc Decision 2023Da302838 decided on December 19, 2024 (modified judgments), the Supreme Court abolished the fixedness doctrine by proclaiming the principle that includes pre-determinedness but excludes fixedness from requirements to be considered as ordinary wage. The modified judgments are not only reasonable as it is in line with the nature of ordinary wage in legal doctrinal terms, but are also desirable in terms of social policy. The modified judgments ruled that, based on the principle of trust and good faith, the effect of the change would apply prospectively, applying to cases other than the one concerned and parallel cases that are subject to the retroactive effect of new precedents, presumably for the purpose of alleviating the social impact that they may cause. Despite the re-establishment of the ordinary wage doctrine in the modified judgments, legal disputes over fixedness and ordinary wage still remain. In the case of expanding the claim, by either extending the claim period or increasing the amount of the claim, in the existing lawsuit seeking additional statutory allowances in accordance with the recalculation of ordinary wage, it will be argued whether to recognize the retroactive effect of the modified judgments on the premise that it is a parallel case. Restrictions on retroactive effect should be allowed only on an exceptional basis, so it would be reasonable to consider that the effect of the modified judgments extends retroactively to the expansion of the claim. In non-parallel cases, the validity of either the active employment requirement or the working days requirement may be disputed. Thus, it remains to be seen whether the Supreme Court will uphold existing lower court judgments or academic theories that invalidated incumbency and working days requirements. In addition, various legal issues remain, including remuneration for a specifically agreed work, and each issue is specifically reviewed in this paper. To fundamentally resolve legal disputes over ordinary wage, the Labor Standards Act must be amended to specifically list wage items excluded from ordinary wage, following the examples of the United States and Japan.