임금에 부가된 “재직조건”의 유효성에 관한 비판적 고찰 - 대법원 2025. 1. 23. 선고 2019다204876 판결을 중심으로 -

The validity of the ‘On-the-Payroll Clause’ attached to wages has been a subject of continuous controversy since 2013. Judgments have been mixed, both in academic circles and in court proceedings. The 2024 en banc Supreme Court decision abolished the existing concept of ‘fixedness’ and newly established the definition and criteria for determining Ordinary Wage. However, while the ruling acknowledged the Ordinary Wage nature of wages subject to the On-the-Payroll Clause, it did not explicitly rule on the validity of the ‘On-the-Payroll Clauset’ itself. This paper will successively examine the following four issues: First, this paper examines whether the In-Service Requirement conflicts with the essential nature of wages. The condition that a certain wage is paid only to employees who are employed on a specific date may contradict the idea that wages are compensation for labor rendered. Second, this paper examines whether the 2024 en banc Supreme Court decision (Full Bench Decision) presupposes the validity of the In-Service Requirement. If an argument is made to deny the validity of the In-Service Requirement, the 2024 en banc decision must be altered as a prerequisite (a preliminary matter) before the expected change in the 2025 Supreme Court ruling that affirms the validity of the In-Service Requirement. Third, this paper examines whether certain requirements are necessary when attaching the In-Service Requirement to wages. Fourth, this paper critically reviews whether the 2025 Supreme Court decision conducted a legally faithful and sound examination of the validity requirements for the In-Service Requirement.