[Plaintiff, Appellee]
[Judgment Below] Seoul District Court (Civil) Decision 93Na10568 rendered on June 25, 1993
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the first instance judgment as cited by the court below, the court below held that the time from entering the mine entrance until arriving at the waiting room for work, and the time from departing the waiting room after finishing work until exiting the mine, constitute mine-entry and mine-exit time and are not included in the actual working hours subject to wage payment; however, preparation for work in the waiting room, cleanup after work, and movement between the waiting room and the working face are carried out subordinately under the direction and supervision of the employer, and therefore the time required for these activities is included in the actual working hours subject to wage payment. In light of the evidentiary relationships set forth in the judgment below, the findings and determinations of the court below are deemed justified and acceptable, and there is no error of law such as a misunderstanding of the legal principles concerning the calculation of actual working hours or a violation of precedent, as argued in the grounds of appeal. This ground of appeal is without merit.
2. According to the reasoning of the judgment below, the court below rejected the Defendant's argument on the ground that, even if the Defendant had overpaid wages to the Plaintiffs under the names of weekly holiday allowance, statutory holiday allowance, and monthly leave allowance, the Defendant, aside from separately exercising a claim for restitution of unjust enrichment against the Plaintiffs, is not permitted, under the principle of direct payment of wages, to assert a set-off against the unpaid statutory allowances owed to the Plaintiffs.
However, in general, wages must be paid directly to the worker in full, and as a matter of principle, a claim held by the employer against the worker may not be set off against the worker's wage claim. Nevertheless, where wages have been overpaid due to a computational error or the like, if the timing of the exercise of the set-off is reasonably close to the time of the overpayment such that it does not lose the substantive character of a settlement or adjustment of wages, and the amount and method are announced in advance such that there is no risk of harming the worker's economic stability, or where a worker claims unpaid wages or retirement allowance accrued during his or her employment after retirement, the employer may set off the claim for restitution of unjust enrichment arising from the overpaid wages, using it as an automatic (active) claim. The court below, taking a different view and rejecting the Defendant's argument for deduction of the amounts equivalent to each overpaid allowance in this case, erred in light of the legal principles set forth above.
However, upon examination of the record, the court below calculated the Plaintiffs' respective monthly holiday working hours for the period asserted by the Defendant, and with respect thereto, determined the wages already paid by the Defendant to the Plaintiffs as holiday work allowance and the wages that should have been paid, calculated the overpaid allowance, and then applied this to offset the unpaid wage amount, thereby calculating the amount of wages the Defendant is obligated to pay; furthermore, it is not recognized that the monthly leave work allowance paid by the Defendant to the Plaintiffs was overpaid. Therefore, the aforementioned error of the court below cannot be said to have affected the outcome of the judgment, and accordingly, the ground of appeal pointing out this issue is without merit.
3. Therefore, the appeal is dismissed, and the costs of the appeal are borne by the losing party. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Presiding Justice Cheon Gyeong-song (Presiding Justice)
Justice An U-man (Justice in charge)
Justice Kim Yong-jun
Justice An Yong-deuk