[Plaintiff, Appellee] Plaintiff (Counsel: Public Interest Legal Officer Kang Sang-woo)
[Defendant, Appellant] Head of the Central Regional Employment and Labor Office (Counsel: Sejong Law LLC, Attorney Lee Byeong-han and one other)
[Judgment Below] Seoul High Court Decision 2015Nu51080 dated May 26, 2016
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to the ground of appeal concerning the scope of average wages that serve as the basis for job-seeking benefits
A. The Employment Insurance Act (고용보험법) provides that the daily amount of job-seeking benefits, which forms the basis for calculating job-seeking benefits, shall in principle be calculated using the average wage as defined in Article 2(1)6 of the Labor Standards Act (근로기준법) (Article 46(1)1 and Article 45(1)). Article 2(1)6 of the Labor Standards Act provides: "Average wage means the amount calculated by dividing the total amount of wages paid to the worker during the three months prior to the date on which the cause for calculation arose by the total number of days in that period."
Further, in cases where a general taxi transportation business operator pays its taxi-driving employees a fixed amount of base pay according to actual days worked each month, and in addition allows the employees to freely dispose of, as their personal income, the remaining revenue after deducting a fixed quota amount ("sabgeum") from the daily transportation revenue (hereinafter "excess transportation revenue"), such excess transportation revenue, considering the peculiar nature of taxi drivers' form of labor and convenience of calculation, must be regarded as having been paid as consideration for labor, and therefore also constitutes wages (see Supreme Court Decision 96Nu17905 dated March 25, 1997; Supreme Court Decision 98Du15269 dated April 25, 2000, etc.).
Considering the content of these provisions of the Employment Insurance Act and the Labor Standards Act, the nature of excess transportation revenue under the quota (sabgeum) system, and the purpose of the job-seeking benefit system under the Employment Insurance Act—which is to stabilize workers' livelihoods and promote job-seeking activities by providing benefits necessary for living in the event of unemployment—the excess transportation revenue must also be included when calculating the average wage that serves as the basis for job-seeking benefits under the Employment Insurance Act.
B. The court below determined that the Defendant's disposition demanding repayment of overpaid job-seeking benefits from the Plaintiff, a taxi-driving employee, was unlawful, in that it was made by excluding, from the calculation of the average wage forming the basis for job-seeking benefits under the Employment Insurance Act, the excess transportation revenue that constituted the Plaintiff's personal income out of the Plaintiff's total transportation revenue, apart from the quota amount.
C. The above determination of the court below is in accordance with the legal principles set forth above and is justified, and there is no error therein, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning the scope of the average wage that serves as the basis for job-seeking benefits.
The Supreme Court Decision 98Da18568 dated April 23, 1999, and other decisions cited as grounds of appeal, concern facts different from those of the present case and are therefore not appropriate to be relied upon in this case.
2. As to the remaining grounds of appeal
A. The court below, for the reasons stated in its judgment, found that 50% of the average wage forming the basis for calculating the amount of job-seeking benefits was 34,505 won, and calculated the overpaid amount that the Plaintiff must repay to the Defendant on this basis.
B. 1) An argument raised for the first time at the appellate (final) stage, without having been raised before the court below, cannot constitute a legitimate ground of appeal against the judgment below (see Supreme Court en banc Decision 93Da26168 dated July 11, 1995, etc.).
The argument that, because there was a period during the average wage calculation period during which the Plaintiff was on leave due to an occupational injury, such period should be excluded from the average wage calculation period, is being raised for the first time at the final appeal stage, and therefore cannot constitute a legitimate ground of appeal against the judgment below.
2) Furthermore, among the grounds of appeal, the argument disputing the fact-finding underlying the determination of the court below is, in substance, nothing more than a challenge to the fact-finding court's free evaluation of evidence, that is, its selection of evidence and assessment of its evidentiary value. Moreover, upon examining the reasoning of the judgment below in light of the relevant legal principles and the lawfully adopted evidence, there is no error in the judgment below, as alleged in the grounds of appeal, in going beyond the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, or in misunderstanding the legal principles concerning the calculation period or method of the average wage, that affected the judgment.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the adjudication.
Justice Ahn Cheol-sang (Presiding Justice), Park Sang-ok, No Jeong-hui, Kim Sang-hwan (Justice in charge)