[Plaintiffs, Appellants and Appellees] As stated in the list of plaintiffs attached hereto. (Attorney for the plaintiffs: Law Firm Owol, Attorney Kang Ho-min)
[Defendant, Appellee and Appellant] Deoksung Yeogaek Automobile Co., Ltd. (Attorneys for the defendant: Kim Young-jae and 1 other)
[Judgment Below] Daejeon High Court Decision 2014Na4734 decided January 14, 2016
[Order]
The part of the judgment below against the plaintiffs other than Plaintiff 27 is reversed, and this part of the case is remanded to the Daejeon High Court. The appeals of Plaintiff 27 and the Defendant are all dismissed. The costs of appeal incurred between Plaintiff 27 and the Defendant shall be borne by each party.
[Reasoning]
1. Determination on Plaintiff 27's appeal
The appellate court may examine and determine only within the scope of the grounds of appeal raised as objections, and therefore the appellant's brief on the grounds of appeal must state specific and explicit reasons as to which part of the judgment below violated which statute and how. Where the appellant's brief on the grounds of appeal fails to state such specific and explicit reasons, it must be treated as if no such brief had been submitted (see Supreme Court Decision 97Da55126 delivered on March 27, 1998; Supreme Court Decision 2007Du23187 delivered on January 24, 2008, etc.).
The petition of appeal submitted by Plaintiff 27 does not state any grounds of appeal, and the subsequently submitted brief on the grounds of appeal only contains an assertion disputing the character as ordinary wages of the CCTV allowance after January 19, 2012, which the said plaintiff did not even claim, and does not state which part of the judgment below concerning the said plaintiff violated which statute and how.
In light of the legal principles set forth above, such petition of appeal and brief on the grounds of appeal cannot be regarded as stating lawful grounds of appeal, as they fail to specify the grounds of appeal or to set forth specific and explicit reasons as to which part of the judgment below violated which statute and how.
2. Determination on the grounds of appeal of the remaining plaintiffs
A. In order for money or valuables paid by an employer to an employee to constitute wages, such money or valuables must be paid as remuneration for work, must be paid continuously and regularly to the employee, and the employer must be obligated to pay them pursuant to a collective agreement, employment rules, etc. Money or valuables the obligation to pay which arises directly in connection with, or closely related to, the provision of labor may be deemed to have been paid as remuneration for work (see Supreme Court Decision 94Da55934 delivered on May 12, 1995; Supreme Court Decision 2011Da23149 delivered on July 14, 2011, etc.).
Whether a certain wage falls under ordinary wages must be determined according to its objective nature, based on whether it is money or valuables paid to an employee as consideration for prescribed work and is paid regularly, uniformly, and in a fixed amount, rather than by formal criteria such as the name of the wage or the length of the payment cycle (Supreme Court en banc Decision 2012Da89399 delivered on December 18, 2013).
Meanwhile, where an employer pays a fixed amount of money to employees on each working day in the name of reimbursement of actual expenses, regardless of whether it is actually used for the stated purpose, such money paid cannot be excluded from wages or ordinary wages on the ground that it constitutes reimbursement of actual expenses (Supreme Court Decision 2014Da27807 delivered on April 23, 2019).
Furthermore, even if money or valuables paid by an employer to an employee as remuneration for work are paid in kind, if they are money or valuables that have been paid as consideration for work, they must be regarded as wages included in the calculation of average wages (see Supreme Court Decision 90Daka19647 delivered on December 7, 1990; Supreme Court Decision 2004Da41217 delivered on September 9, 2005, etc.).
B. According to the reasoning of the judgment below and the records, the following facts can be known.
1) Around March 1998, the Defendant and the labor union of the Defendant's employees (hereinafter collectively referred to as "the Defendant's labor and management") agreed to install CCTV in the buses in operation and to pay a daily allowance of KRW 10,000 in the name of cigarettes, gloves, beverages, and other miscellaneous expenses to all driving employees who reported to work on that day.
2) Thereafter, around January 2012, when the Defendant's labor and management removed the aged CCTV and installed new CCTV, the agreement they concluded provided that during the CCTV replacement period, a daily allowance of KRW 5,000 would be paid in the name of beverage expenses, and that after the completion of the said replacement work on January 19, 2012, a merchandise purchase voucher issued by the Defendant for use at the in-house store, equivalent to a daily allowance of KRW 10,000, would be paid in the name of reimbursement of actual expenses for gloves, beverages, cigarettes, and other miscellaneous expenses.
3) Pursuant to each of the above agreements, the Defendant paid, regardless of whether the money was actually used as expenses, cash to all driving employees who provided labor until January 18, 2012, and merchandise purchase vouchers from January 19, 2012. There is no material suggesting that the Defendant withheld or reduced the CCTV allowance at issue on the ground that it was not actually used as expenses.
4) Driving employees who reported to work on a given day were uniformly paid the CCTV allowance at issue.
C. Examining the above facts in light of the legal principles set forth above, the CCTV allowance at issue paid after January 19, 2012 is consideration for prescribed work paid as remuneration for work in connection with the provision of labor by the driving employees; although the amount paid varied depending on the number of working days, the payment of the CCTV allowance at issue was fixed and certain so long as prescribed work was provided on a working day, and it was paid regularly, uniformly, and in a fixed amount, and thus it is included in ordinary wages; this conclusion remains the same even though it was paid in the name of reimbursement of actual expenses and was delivered in the form of a merchandise purchase voucher issued by the Defendant. Nevertheless, the court below determined that the CCTV allowance at issue paid after January 19, 2012 does not constitute ordinary wages, on the grounds, as stated in its reasoning, that the places where the merchandise purchase voucher could be used were limited, that it could not be exchanged for cash, and that since goods such as gloves, beverages, and cigarettes are necessary for bus operation, this should be regarded as a measure to provide employees with welfare benefits or goods necessary for the provision of labor. This determination by the court below contains an error of law that misapprehends the legal principles concerning wages and ordinary wages, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out has merit.
3. Determination on the Defendant's grounds of appeal
A. As to Grounds of Appeal Nos. 1 and 2
Based on the facts as stated in its reasoning, the court below determined that the CCTV allowance at issue, which the Defendant paid to the plaintiffs in cash from February 1, 2011 to January 18, 2012, constitutes wages paid regularly, uniformly, and in a fixed amount as consideration for prescribed work, and thus constitutes ordinary wages, and that the Defendant is obligated to recalculate each allowance and retirement allowance based on the ordinary wages calculated to include the said CCTV allowance and to pay the plaintiffs the difference between the amounts already paid and the recalculated amounts, and thereby upheld the judgment of the first instance court, which rejected the Defendant's defense that the plaintiffs' claim in this case violates the principle of good faith.
Examining the reasoning of the judgment below in light of the relevant legal principles and the records, there is no error in the judgment below that misapprehends the legal principles concerning the requirements for ordinary wages and the defense of good faith, as alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.
B. As to Ground of Appeal No. 3
The provision on the statutory interest rate under the main text of Article 3(1) of the Act on Special Cases concerning the Expedition, etc. of Legal Proceedings (소송촉진 등에 관한 특례법), wholly amended by Presidential Decree No. 26553 on September 25, 2015 and effective from October 1, 2015, provides that "the statutory interest rate under the main text of Article 3(1) of the Act on Special Cases concerning the Expedition, etc. of Legal Proceedings shall be 15/100 per annum," and Article 2(1) of the Addenda provides that "notwithstanding the amended provisions of this Decree, with respect to cases pending in court as of the enforcement of this Decree in which the pleadings of the first instance have been concluded, the previous provisions shall apply."
According to the records, it can be seen that the first instance court concluded the pleadings on September 17, 2014, before the enforcement of the said amended provision, and therefore, pursuant to Article 2(1) of the Addenda, the interest rate under the previous provisions applies to the statutory interest rate in such a case. Accordingly, there is no error in the judgment below, which ordered payment of delay damages calculated at the previous statutory interest rate of 20% per annum from the day following the date of pronouncement of the judgment below until the date of full payment, in violation of the statutory provisions concerning Article 3 of the Act on Special Cases concerning the Expedition, etc. of Legal Proceedings, as alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.
4. Conclusion
Therefore, the part of the judgment below against the plaintiffs other than Plaintiff 27 is reversed, and this part of the case is remanded to the court below for further hearing and determination; the appeals of Plaintiff 27 and the Defendant are dismissed as they are without merit, and the costs of appeal incurred between Plaintiff 27 and the Defendant shall be borne by each party. This judgment is rendered as stated in the Order, with the unanimous consent of the Justices participating in the decision.
[Attachment: List of Plaintiffs: Omitted]
Justice Ro Jeong-hui (Presiding Justice), Park Sang-ok (Justice in Charge), Ahn Cheol-sang, Kim Sang-hwan