통상성으로 본 대법원의 통상임금법리 (Legal principles on ordinary wage in lights of normality)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 49호 / 33 ~ 57페이지
· 저자명 : 김성진

초록

The Supreme Court made critical decision on ordinary wage on 18 Dec 2013. The evaluations on this decision is based on normality are as follows:First, The Supreme Court agrees with the definition that the notion of ordinary wage is ‘the financially evaluated one related to the worth of work time provided by the worker’, as the essential idea to ordinary wage is based upon the normality. Just, some cases did not accomplish this normality, though the judgement of The Supreme Court indicates that the ordinary wage must assure the function of providing minimum living expense to the worker.
Second, the Actually-Employed Payment Rule which denotes the company pays the wage only to the presently employed workers has no effect as it implies the prior abandonment stipulation on wage. Also, the wage does not lose its worth even though such rules actually exist in the company. The only fact that employer did not pay the wage exists and the idea of ordinary wage must not be abandoned by this.
Third, satisfying the given work days corresponds to the quantitative fact of providing work and it must not be considered to be a volatile factor. The days of work can only be set up by the employer and a practical and normality-based judgement must be made on this. Based on this point of view, the decision made by The Supreme Court which does not recognize the ordinary wage is unreasonable.
Fourth, The Supreme Court denied the claim on non-payed wage, which is based on the former decision of The Supreme Court which sees the regular bonus as ordinary wage and sees the effect of separating the regular bonus from ordinary wage by settlement between labor and management invalid, as The Supreme Court quoted Good Faith Doctrine, and this decision is a good case which applied the extraordinary logic to the extremely ordinary judgement on ordinary wage.

영어초록

The Supreme Court made critical decision on ordinary wage on 18 Dec 2013. The evaluations on this decision is based on normality are as follows:First, The Supreme Court agrees with the definition that the notion of ordinary wage is ‘the financially evaluated one related to the worth of work time provided by the worker’, as the essential idea to ordinary wage is based upon the normality. Just, some cases did not accomplish this normality, though the judgement of The Supreme Court indicates that the ordinary wage must assure the function of providing minimum living expense to the worker.
Second, the Actually-Employed Payment Rule which denotes the company pays the wage only to the presently employed workers has no effect as it implies the prior abandonment stipulation on wage. Also, the wage does not lose its worth even though such rules actually exist in the company. The only fact that employer did not pay the wage exists and the idea of ordinary wage must not be abandoned by this.
Third, satisfying the given work days corresponds to the quantitative fact of providing work and it must not be considered to be a volatile factor. The days of work can only be set up by the employer and a practical and normality-based judgement must be made on this. Based on this point of view, the decision made by The Supreme Court which does not recognize the ordinary wage is unreasonable.
Fourth, The Supreme Court denied the claim on non-payed wage, which is based on the former decision of The Supreme Court which sees the regular bonus as ordinary wage and sees the effect of separating the regular bonus from ordinary wage by settlement between labor and management invalid, as The Supreme Court quoted Good Faith Doctrine, and this decision is a good case which applied the extraordinary logic to the extremely ordinary judgement on ordinary wage.

참고자료

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