[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 1 other (Attorney Park Young-sik for the Plaintiffs)
[Defendant, Appellee] Republic of Korea
[Defendant, Appellee and Appellant] Seoul Joint Execution Officers' Office (Attorney Choi Jong-baek for the Defendant)
[Lower Court Judgment] Seoul High Court Judgment 96Na43166, decided November 6, 1997
[Order]
The appeals filed by the Plaintiffs and by Defendant Seoul Joint Execution Officers' Office are all dismissed.
Of the costs of appeal, the portion arising from the Plaintiffs' appeal shall be borne by the Plaintiffs, and the portion arising from the appeal of Defendant Seoul Joint Execution Officers' Office shall be borne by said Defendant.
[Reasoning]
We examine the grounds of appeal.
1. As to Plaintiff 2's appeal against Defendant Republic of Korea
Although Plaintiff 2 filed an appeal against Defendant Republic of Korea, since Plaintiff 2 and his representative did not submit any grounds of appeal with respect to Defendant Republic of Korea, Plaintiff 2's appeal against Defendant Republic of Korea is without merit.
2. As to whether Defendant Seoul Joint Execution Officers' Office is an employer under the Labor Standards Act (근로기준법) bearing the obligation to pay retirement allowances to the Plaintiffs (Defendant's first ground of appeal)
Whether a person constitutes an "employee" under the former Labor Standards Act (근로기준법) (before amendment by Act No. 5245 of December 31, 1996; hereinafter "the former Labor Standards Act"), which was in effect at the time of the Plaintiffs' retirement, must be determined, regardless of the form of the contract, according to whether the employee, in substance, provided labor to the employer in a subordinate relationship for the purpose of receiving wages. In making this determination, the following matters must be comprehensively considered: whether the content of the work is determined by the employer and whether the employee is subject to work rules, service regulations, personnel regulations, and the like, and whether the employee is subject to specific and direct supervision and direction by the employer in the course of performing the work; whether the working hours and place of work are designated by the employer and whether the employee is bound thereby; the ownership of equipment, raw materials, tools, and the like; matters concerning remuneration, such as whether the remuneration has the character of consideration for the labor itself, whether a basic or fixed wage is set, and whether income tax on wages is withheld at source; the continuity of the employment relationship and the existence and degree of exclusive attachment to the employer; whether employee status must be recognized under other statutes, such as social security legislation; and the economic and social conditions of both parties (see Supreme Court Decision 96Da54294, decided February 27, 1998; Supreme Court Decision 97Da17575, decided December 26, 1997; Supreme Court Decision 97Da7998, decided November 28, 1997, among others). Conversely, in determining who bears the obligation, as the "employer" under Articles 28(1) and 30 of the former Labor Standards Act, to pay retirement allowances to a given employee, the determination must likewise be based on the substantive employment relationship regardless of the form of the contract or the content of related statutes, and the same various factors set forth above must be comprehensively considered.
According to the reasoning of the lower court judgment, the lower court, upon comprehensive consideration of the evidence indicated therein, found facts as indicated in its judgment concerning: the establishment of the East and West Bailiffs' Joint Office in 1960, the Seoul District Court Bailiffs' Joint Office on November 29, 1967, and the Seoul Bailiffs' Joint Office on October 26, 1973 (whose name was subsequently changed sequentially to the Seoul Execution Officers' Joint Office and then to Seoul Joint Execution Officers' Office; hereinafter Defendant Seoul Joint Execution Officers' Office is referred to as "Defendant Office"); the content of the system of bailiff's agents (집달리대리자) under the Bailiff Act (집달리법), Act No. 702 of August 31, 1961 (hereinafter "the 1961 Act"); and the content of the system of bailiff's clerks (집달리 사무원) under the Bailiff Act as amended by Act No. 2552 of February 24, 1973 (hereinafter "the 1973 Act") {the title "bailiff" (집달리) was subsequently changed sequentially to "execution officer" (집달관) under Act No. 3363 (집달관법) of January 29, 1981, and again to "execution officer" (집행관) under Act No. 5002 (집행관법) of December 6, 1995, and correspondingly the title of the clerks changed sequentially to "execution officer's clerk" (집달관 사무원) and then to "execution officer's clerk" (집행관 사무원). Hereinafter, depending on the relevant period, they are sometimes referred to as "bailiff's clerk," "execution officer's (집달관) clerk," etc., and sometimes both are simply referred to as "execution officer's clerk" collectively}. Regarding personnel management and remuneration of execution officer's clerks, the lower court found the following:
① Regardless of the changes in the statutes and their implementing rules (Supreme Court Rules) governing execution officer's clerks and the Joint Execution Officers' Office, in actual practice, execution officer's clerks were appointed by the head of the Joint Office by way of nomination, upon obtaining the consent of the relevant execution officer, following approval by the President of the Seoul District Court, and the appointment and posting were made in the name of the head of the Joint Office.
② Clerks of the Joint Office, in principle, assisted the work of the particular execution officer to whose appointment they had consented, but when performing their duties, carried an identification card issued by the head of the Joint Office indicating their affiliation as the Seoul District Court and their title as "clerk."
③ After all 27 bailiffs belonging to the Seoul Civil District Court and its branch courts at the time enacted new regulations (hereinafter "the 1973 Regulations") pursuant to the 1973 Act and the Enforcement Rules of the Bailiff Act as wholly amended thereunder (Supreme Court Rule No. 539 of September 17, 1973; hereinafter "the 1973 Rules"), and thereby established the Seoul Bailiffs' Joint Office, the Plaintiffs, following personnel orders of the head of the Joint Office, had their affiliation changed so as to assist execution officers other than the one to whose appointment they had consented at the time of appointment, or were transferred to work at offices of the main court or a branch court of the Seoul District Court; they were each once subjected to disciplinary action of suspension and salary reduction by the Joint Office; and they also received clerk training from the Joint Office on October 4, 1980.
④ When the execution officer to whom a clerk belonged retired, the clerk likewise retired, but, absent special circumstances, was continuously employed as a clerk to another execution officer, through the approval procedure of the court president.
⑤ Although it is unclear from whom—individual bailiffs or the Joint Office (the East and West Bailiffs' Joint Office established in 1960 and the Seoul District Court Bailiffs' Joint Office established on November 29, 1967)—bailiff's agents received wages before June 30, 1973, from July 1, 1973, when the bailiff's clerk system took effect, the Joint Office separately enacted remuneration regulations providing that the amount of remuneration for bailiff's clerks be determined by the general meeting, and accordingly execution officer's clerks thereafter received from Defendant Office a base salary, position allowance, and bonus determined from time to time by the general meeting of Defendant Office according to career and pay grade.
⑥ Under the Remuneration Regulations of the Seoul Bailiffs' Joint Office as amended on December 20, 1980, a retirement allowance system was newly established whereby a retiring employee was to be paid, as a retirement allowance, the amount calculated by multiplying the average wage—equal to one-third of the total wages paid over the three months preceding the month in which the cause for retirement arose—by the years of continuous service, after deducting therefrom the total amount of retirement allowance and conversion money paid under the National Pension Act.
⑦ The execution officers who were members of the Seoul Execution Officers' Joint Office each registered as individual business operators in their own names and paid income tax, and each withheld wage income tax on behalf of the execution officer's clerks belonging to them.
Based on these findings, the lower court determined as follows: Although, under the statutes in effect since the 1961 Act, a bailiff was formally permitted, at his own responsibility, to engage a bailiff's agent or a clerk to assist in his duties; the bailiff nominated the clerk he wished to appoint; upon the bailiff's retirement the clerk was deemed dismissed; and the bailiff, as an individual business operator, withheld wage income tax for his own clerk—so that, in form, each individual bailiff appears to be the employer of the bailiff's clerk—when the substance of the employment relationship is examined:
① At least from the time of the enactment of the Regulations of the Seoul District Court Bailiffs' Joint Office on November 29, 1967 (hereinafter "the 1967 Regulations"), all bailiffs were compulsorily made members of the Joint Office, and the Joint Office has continued to exist as an unincorporated association performing socially independent functions with respect to its organization, allocation of duties, and distribution of income;
② The Joint Office collectively undertook execution-related work, allocated and had it performed by the member bailiffs in accordance with the Regulations, and equally distributed the resulting income among them;
③ Execution officer's clerks were, in substance, hired in the name of the head of the Joint Office and ordered to work at the offices located in the main court or branch court;
④ The remuneration and retirement allowance for clerks were determined pursuant to remuneration regulations enacted by the Joint Office, and the salary determined by the Joint Office according to career and pay grade was paid by the Joint Office as wages;
⑤ Member bailiffs of the Joint Office could supervise and demand disciplinary action against clerks belonging to other bailiffs, and the head of the Joint Office held disciplinary authority over execution officer's clerks; execution officer's clerks also received clerk training from the Joint Office on occasion; and
⑥ Although, in form, a clerk was treated as dismissed upon the retirement of the execution officer to whom he belonged, in reality the clerk's affiliation was changed to a new execution officer and the clerk continued in employment.
Considering these circumstances comprehensively, the lower court found that although the execution officer's clerks, including the Plaintiffs, formally appeared to serve as clerks of an individual execution officer, in substance they continuously provided labor to Defendant Office in a subordinate relationship for the purpose of receiving wages.
Upon examining the relevant evidence against the record, the lower court's above fact-finding is proper, and it cannot be said that there is any illegality in violating the rules of evidence and thereby misapprehending the facts. Given this factual premise, even if, as Defendant Office argues, an execution officer is to be construed, under Article 55(2) of the Court Organization Act (법원조직법) and Article 2 of the former Execution Officers Act (집달관법) (before amendment by Act No. 5002 of December 6, 1995), as an independent, single-member judicial officer, and even if Article 17(1) and (4) of the 1973 Rules (before full amendment by Supreme Court Rule No. 1402 of December 26, 1995) provided that an execution officer's clerk was to be hired by the execution officer at his own responsibility, and that a clerk hired by an execution officer was deemed dismissed upon the execution officer's retirement, Defendant Office must nonetheless be held to be the employer of the Plaintiffs bearing the obligation to pay retirement allowances to the Plaintiffs under Articles 28(1) and 30 of the former Labor Standards Act. Accordingly, the lower court's judgment to the same effect cannot be said to contain an error of misapprehending the legal principles concerning "employee" or "employer" under the Labor Standards Act as argued. The first ground of the Defendant's appeal is without merit.
3. As to the point in time at which the employment relationship between the Plaintiffs and Defendant Office was established (Plaintiff 1's first ground of appeal; Plaintiff 2's first, second, and third grounds of appeal)
According to the reasoning of the lower court judgment, the lower court found that the Seoul District Court Bailiffs' Joint Office had, at least since the enactment of the 1967 Regulations, possessed the substance of a single, unified unincorporated association, and that, after the newly established statutory basis under the substantially amended 1973 Act and 1973 Rules led to the establishment of the new Seoul Bailiffs' Joint Office, that entity, despite subsequent changes of name, had operated up to the time of the 1995 statutory amendment as an organization that was, socially, in fact identical to Defendant Office. However, viewed from the standpoint of the employment relationship with the Plaintiffs, the lower court held as follows: the provisions concerning the Plaintiffs' status and standing were institutionally substantially altered by the abolition of the bailiff's agent system under the 1973 Act, and accordingly the Seoul Bailiffs' Joint Office, rather than merely amending the 1967 Regulations, adopted the form of newly establishing itself by enacting the new 1973 Regulations. Thus, although the provisions concerning the hiring of a bailiff's agent or bailiff's clerk at the bailiff's own responsibility, and the procedures for hiring and discipline, were similar both before and after July 1, 1973, there were substantial differences between the status of a bailiff's agent before that date and the status of a clerk thereafter: during the period of the bailiff's agent system, in terms of status and duties, every bailiff's agent belonged to a specific bailiff and was to act as agent or proxy for that bailiff's duties, and there is no trace that the head of the East and West Bailiffs' Joint Office or of the Seoul District Court Bailiffs' Joint Office issued personnel orders or conducted job training with respect to them. Moreover, while Article 19 of the 1967 Regulations merely provided that the monthly remuneration of a bailiff's agent was to be determined at the general meeting of the Seoul District Court Bailiffs' Joint Office and paid at the end of each month, it is unclear how the remuneration was actually determined or who was the paying entity, and there was no basis whatsoever for a retirement allowance system. By contrast, after the 1973 Regulations, execution officer's clerks were appointed in the name of the head of the Seoul Execution Officers' Joint Office, and the Seoul Execution Officers' Joint Office also hired clerks not belonging to any specific execution officer; the duties of execution officer's clerks changed to simply assisting the work of an execution officer; the Seoul Execution Officers' Joint Office determined the base salary and allowance amounts from time to time pursuant to the Remuneration Regulations and itself paid these amounts; a basis for accumulating funds for retirement allowance payment was also established; and, in addition, job training and rotation between the main court and branch courts of execution officer's clerks were carried out pursuant to personnel orders of the head of the Seoul Execution Officers' Joint Office. In light of these circumstances, the lower court determined that the employment relationship between the Plaintiffs and Defendant Office commenced on October 26, 1973, the date of the establishment of Defendant Office under the 1973 Rules and the 1973 Regulations, by which the bailiff's agent system was abolished and the bailiff's clerk system was established, and accordingly rejected the Plaintiffs' argument that the period of service from when the Plaintiffs began working as bailiff's agents until before October 26, 1973 should be included in the period of continuous service for calculating the retirement allowance in this case.
Examining the relevant statutory provisions and the degree of proof concerning the content of the Plaintiffs' work, the form of work, and the entity paying wages during the period from when the Plaintiffs began working as bailiff's agents until before October 26, 1973, against the record, the above determination of the lower court can be sustained, and it cannot be said that there is any illegality therein, such as misapprehension of the legal principles concerning the establishment of an unincorporated association, the employment relationship of a bailiff's agent, the employing entity, or the period of continuous service, or misapprehension of facts due to violation of the rules of evidence, or insufficient examination, as argued by the Plaintiffs. Plaintiff 1's first ground of appeal, and Plaintiff 2's first, second, and third grounds of appeal, are all without merit.
4. As to whether the Plaintiffs' employment relationship was severed as of December 31, 1983 (Defendant Office's second ground of appeal)
Where, within the same enterprise, an employee resigns of his own free choice and voluntarily, and is immediately re-employed the following day and continues to work, the employment relationship is thereby severed; however, where the employee has not resigned of his own free choice and voluntarily, but rather the form of paying the retirement allowance accrued up to that point was adopted pursuant to a unilateral decision based on the employer's management policy, the employment relationship cannot be deemed to have been severed.
According to the reasoning of the lower court judgment, the lower court, upon comprehensive consideration of the evidence indicated therein, found that Defendant Office, at its regular general meeting of October 20, 1983, amended the Remuneration Regulations to newly establish, effective January 1, 1984, a retirement allowance provision under which retirement allowance would be paid only for the period of continuous service from that date onward, and accordingly, on December 19, 1983, paid to the Plaintiffs the amounts indicated in its judgment as retirement allowance for the period of service from March 1, 1980 to October 31, 1983; that there is no material to establish that the Plaintiffs, prior to that time, had received a retirement allowance payment on each occasion when the execution officer to whom they belonged retired and they were reappointed as clerk to a new execution officer; and that there is likewise no material to establish special circumstances such as that the Plaintiffs retired from Defendant Office at the time of the interim retirement allowance payment on December 19, 1983, or that the Plaintiffs voluntarily agreed to settle the retirement allowance accrued up to that point. The lower court therefore determined that it is reasonable to view the Plaintiffs as having continuously worked for Defendant Office both before and after the said interim retirement allowance payment, and that the Plaintiffs' period of continuous service cannot be deemed to have been severed by Defendant Office's payment of the said interim retirement allowance.
Examining the relevant evidence against the record, the lower court's above determination is proper, and it cannot be said that there is any illegality therein, such as misapprehension of facts due to violation of the rules of evidence, as argued. Defendant's second ground of appeal is also without merit.
5. As to the scope of wages to be included in calculating the Plaintiffs' average wage
a. Scope of wages to be included in calculating average wage
The total amount of wages forming the basis for calculating average wage includes, regardless of its designation, any money or valuables paid by the employer to the employee as consideration for labor, which is paid continuously and regularly and which the employer is obligated to pay under a collective bargaining agreement, work rules, salary regulations, employment contract, labor practice, or the like (see Supreme Court Decision 96Nu15084, decided May 28, 1997; Supreme Court Decision 95Da19256, decided May 14, 1996; Supreme Court Decision 94Da55934, decided May 12, 1995; Supreme Court Decision 91Da5587, decided April 14, 1992, among others). On the other hand, money or valuables paid by a person other than the employer, or money paid not as consideration for labor but rather to reimburse expenses additionally incurred by the employee due to performing duties under special working conditions or environment (i.e., money of an expense-reimbursement nature), or money paid gratuitously by the employer without any obligation to pay, are not included in the total amount of wages forming the basis for calculating average wage.
b. As to Plaintiff 1's labor allowance (Plaintiff 1's second ground of appeal)
According to the reasoning of the lower court judgment, with respect to Plaintiff 1's argument concerning the labor allowance, the lower court, upon comprehensive consideration of the evidence indicated therein, found the following facts: that, for the seizure of movable property and the delivery and demolition executions of real property, an execution officer receives an advance deposit of KRW 9,500 as a basic labor allowance per instance from the party requesting execution, and, when it is necessary to employ a technician or laborer as an execution assistant, receives an advance deposit of KRW 70,000 per person as labor cost, as a type of fee, pursuant to Article 20(5) and Article 25 of the Execution Officer Fee Rules (집달관수수료규칙); and that when an execution officer's clerk receives such fees together with the case file from Defendant Office, the execution officer has the execution officer's clerk and a driver/resident laborer assist in the execution, and of the said expenses, the labor allowance of KRW 9,500 per instance is given to the accompanying execution officer's clerk, who ordinarily shares it equally with the driver, while the labor cost necessary for demolition and delivery executions is paid, on each occasion, to the technician or laborer mobilized at that time. The lower court determined that the said labor allowance and labor cost are money of an expense-reimbursement nature, received as fees from the party requesting execution and paid in full each time the actual execution work is performed, and, since the full amount is not paid to Plaintiff 1 and other execution officer's clerks, it is difficult to view this as wages uniformly paid by Defendant Office to Plaintiff 1 as consideration for labor, and therefore it cannot be included in the basic wage for calculating Plaintiff 1's average wage.
Examining the relevant evidence against the record, the lower court's fact-finding and determination are proper, and it cannot be said that there is any illegality therein, such as misapprehension of facts due to violation of the rules of evidence, or misapprehension of the legal principles, as argued. Plaintiff 1's second ground of appeal is without merit.
c. As to Plaintiff 2's real property status investigation allowance (Plaintiff 2's fourth ground of appeal)
According to the reasoning of the lower court judgment, with respect to Plaintiff 2's argument concerning the real property status investigation allowance, the lower court, upon comprehensive consideration of the evidence indicated therein, found that where an execution officer, having received an order from the auction court to investigate the status of real property, performs the investigation duties, the auction court receives an advance deposit from the auction applicant, pursuant to Article 20 of the Execution Officer Fee Rules (집행관수수료규칙), covering fees, the execution officer's travel expenses, photography costs, and resident registration issuance fees, and pays these to the execution officer; and depending on the execution officer, the execution officer's clerk is sometimes made to assist in the said status investigation duties and is paid, under the designation of "real property status investigation allowance," KRW 10,000 per trip as travel expenses and KRW 2,260 per case for photography and resident registration issuance costs. Based on these findings, the lower court determined that the substance of the real property status investigation allowance is that the expense advanced by the auction applicant to the auction court is paid as is to the execution officer, who in turn pays it, according to the number of trips, to the execution officer's clerk who actually assisted in the status investigation work; that it is merely money of an expense-reimbursement or gratuitous nature; and that, since it is not paid directly by Defendant Office to the execution officer's clerk, the real property status investigation allowance cannot be included in the basic wage for calculating Plaintiff 2's average wage.
Examining the relevant evidence against the record, the lower court's fact-finding and determination are proper, and it cannot be said that there is any illegality therein, such as misapprehension of the legal principles concerning the real property status investigation allowance of an execution officer's clerk to be included in calculating average wage, or misapprehension of facts due to violation of the rules of evidence, or insufficient examination, as argued. Plaintiff 2's fourth ground of appeal is without merit.
d. As to Plaintiff 2's field-duty travel allowance (Defendant Office's third ground of appeal)
According to the reasoning of the lower court judgment, with respect to Plaintiff 2's argument concerning the field-duty travel allowance, the lower court, upon comprehensive consideration of the evidence indicated therein, found that since real property status investigation work involves many field trips and is arduous work such that execution officer's clerks tend to avoid it, Defendant Office, from around 1979, uniformly paid KRW 150,000 per month to all execution officer's clerks assisting in status investigation work. Based on this finding, the lower court determined that the field-duty travel allowance is clearly wages paid as consideration for labor, being remuneration paid regularly and uniformly by Defendant Office each month to execution officer's clerks assisting in real property status investigation work regardless of the number of cases handled, and therefore Plaintiff 2's field-duty travel allowance must be included in the basic wage for calculating average wage.
Examining the relevant evidence against the record, the lower court's fact-finding and determination are proper, and it cannot be said that there is any illegality therein, such as misapprehension of facts due to violation of the rules of evidence, concerning the scope of the basic wage for calculating average wage, as argued. Defendant Office's third ground of appeal is also without merit.
6. In conclusion, since the appeals of the Plaintiffs and of Defendant Office are all without merit, they are all dismissed, and the costs of appeal are to be borne by each losing party. It is so decided, in accordance with the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Park Jun-seo (Presiding Justice), Lee Don-hee, Lee Im-su (Justice in Charge), Seo Seong