Open Decision Ledger · Labour & industrial accidents
Good faith and extra statutory pay after recomputing ordinary wages
Supreme Court, Dec. 16, 2021, 2016Da10544 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 임금
Official text on the National Law Information Center
Question
Where a labour-management agreement excluded the regular bonus from ordinary wages and the wage level was set on that basis, does an employee's claim for additional statutory overtime calculated by adding the bonus back breach the principle of good faith, and by what standard is it decided whether that claim causes serious managerial difficulty or threatens the employer's very existence?
Holding
In principle such a claim is not barred by good faith, because rejecting it would defeat the purpose of the mandatory provisions of the Labor Standards Act. It may be barred only where the general requirements of good faith are met and, despite the mandatory nature of those provisions, special circumstances make good faith take precedence. Whether the claim causes serious managerial difficulty is decided by weighing the size of the additional statutory overtime, the rise in real wages and ordinary wages, the employer's profits and their trend, the funds available, labour costs, sales, the employer's continuity and profitability and the condition of the industry as a whole; here the deterioration was foreseeable or within the risk the employer had to bear, and was a temporary hardship it could overcome, so no serious crisis or threat to existence was shown.
Points at issue, verbatim
갑 회사의 경영상태의 악화는 예견할 수 있거나 부담해야 할 범위에 있고, 극복할 가능성이 있는 일시적 어려움이라고 볼 수 있는 등 추가 법정수당 등의 지급으로 갑 회사에 중대한 경영상 위기가 초래된다거나 기업의 존립 자체가 위태롭게 된다고 인정하기 어렵다고 한 사례
Unofficial English translation
It is difficult to recognize that the payment of additional statutory allowances and the like causes a serious managerial crisis to Company A or endangers the existence of the enterprise itself, such as where the deterioration of Company A's managerial condition is something that could be foreseen or is within the scope to be borne, and can be regarded as a temporary difficulty that may be overcome
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 원고들 패소 부분 중 격려금, 성과금, 상여O/T, 하기휴가비, 월차휴가수당 청구 부분을 제외한 나머지 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 원고들의 나머지 상고를 모두 기각한다.
Unofficial English translation
Of the portion of the judgment of the court below in which the plaintiffs lost, the portion other than the claims for encouragement payments, performance bonuses, bonus O/T, summer vacation allowances, and monthly paid leave allowances is reversed, and this part of the case is remanded to the Busan High Court. All of the plaintiffs' remaining final appeals are dismissed.
Form of the test
Circumstances weighed Stated in the decision
추가 법정수당의 규모, 추가 법정수당 지급으로 인한 실질임금 인상률, 통상임금 상승률, 기업의 당기순이익과 그 변동 추이, 동원 가능한 자금의 규모, 인건비 총액, 매출액, 기업의 계속성·수익성, 기업이 속한 산업계의 전체적인 동향 등 기업운영을 둘러싼 여러 사정을 종합적으로 고려해서 판단해야 한다.
Unofficial English translation
A determination must be made by comprehensively considering the various circumstances surrounding the management of the enterprise, such as the scale of the additional statutory allowances, the rate of increase in real wages due to the payment of the additional statutory allowances, the rate of increase in ordinary wages, the enterprise's current net profit and the trend of its fluctuations, the scale of the funds that can be mobilized, the total amount of labor costs, the amount of sales, the continuity and profitability of the enterprise, and the overall trends of the industry to which the enterprise belongs.
Factors
- 갑 회사의 경영상태의 악화는 예견할 수 있거나 부담해야 할 범위에 있고
- 극복할 가능성이 있는 일시적 어려움이라고 볼 수 있는 등
- 추가 법정수당 등의 지급으로 갑 회사에 중대한 경영상 위기가 초래된다거나 기업의 존립 자체가 위태롭게 된다고 인정하기 어렵다고
Unofficial English translation
• the deterioration of Company A's managerial condition is something that could be foreseen or is within the scope to be borne, and
• can be regarded as a temporary difficulty that may be overcome, etc.,
• it is difficult to recognize that the payment of additional statutory allowances and the like causes a serious managerial crisis to Company A or endangers the existence of the enterprise itself
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2013. 12. 18. 선고 2012다89399 전원합의체 판결(공2014상, 236)
Unofficial English translation
Supreme Court en banc Judgment 2012Da89399 rendered December 18, 2013 (Gong 2014 Sang, 236)
Decisions referred to
[1] 대법원 2013. 12. 18. 선고 2012다89399 전원합의체 판결(공2014상, 236), 대법원 2019. 2. 14. 선고 2015다217287 판결(공2019상, 721), 대법원 2021. 6. 10. 선고 2017다52712 판결(공2021하, 1269)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the employer made no rational and objective business forecast at the time the wages were agreed, can a later downturn still be treated as a hardship it foresaw or had to bear?
The judgment of the Busan High Court on remand, once it weighs the employer's finances at the close of oral argument, will show how the standard is applied in practice. A later Supreme Court decision treating the good faith exception differently, or a change to Article 2(1) of the Civil Code or Article 6(1) of the Enforcement Decree of the Labor Standards Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the employer made no rational and objective business forecast at the time the wages were agreed, can a later downturn still be treated as a hardship it foresaw or had to bear?” vs Independent “What amounts of unpaid statutory allowances and additional retirement benefits are ultimately payable to each employee on remand?”
The primary asks whether a later downturn can be treated as foreseen when the employer made no rational forecast, while the independent asks what amounts remain payable on remand.
갑 회사의 경영상태의 악화는 예견할 수 있거나 부담해야 할 범위에 있고, 극복할 가능성이 있는 일시적 어려움이라고 볼 수 있는 등 추가 법정수당 등의 지급으로 갑 회사에 중대한 경영상 위기가 초래된다거나 기업의 존립 자체가 위태롭게 된다고 인정하기 어렵다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Busan High Court, in its judgment of 13 January 2016 (2015Na1956), dismissed the plaintiffs' claims. Taking the view that the defendant's additional burden would reach about KRW 86.8 billion over four years and six months, it held that the employees' claims for unpaid statutory overtime and the difference in retirement benefits could not be allowed because they breached the principle of good faith.
Supreme Court standard: The Supreme Court held that the court below had misread the law on good faith. It had looked only at the employer's temporary deterioration and had not considered whether the employer could foresee or had to bear that deterioration, whether it could overcome it, and the continuity and profitability of the business. It reversed that part of the judgment and remanded the case to the Busan High Court, while dismissing the plaintiffs' appeals on the claims for incentive pay, performance bonus, overtime allowance for the bonus, summer holiday allowance and unused annual leave allowance, for which no grounds of appeal had been stated.
Distinguishing conditions
- Deterioration in the employer's trading that the employer could not have foreseen or that lies outside the risk it must bear, so that it is not a temporary hardship within its capacity to overcome.
- Addition of the regular bonus and the statutory overtime calculated on it giving rise to a serious managerial crisis or threatening the existence of the enterprise itself.
- A claim for incentive pay, performance bonus, overtime allowance for the bonus, summer holiday allowance or unused annual leave allowance, which the order left undisturbed because no grounds of appeal were stated.
Record verification notes
Gather the employer's figures for each year around the time the close of oral argument in the court of fact, since the Court weighed the scale of the additional statutory overtime against profits and their trend at that point. Set aside the portions already barred by limitation and the holiday overtime double premium, which the Court did not include in its calculation. Then look for what the employer itself forecast about recovery, as the Court relied on the defendant's expectation that the shipbuilding industry would recover from 2014.
From the official text
Points at issue
[1] 노사가 정기상여금을 통상임금에서 제외하기로 합의하고 이를 기초로 임금수준을 정한 경우, 근로자가 노사합의의 무효를 주장하며 정기상여금을 통상임금에 포함하여 산정한 추가 법정수당을 청구하는 것이 신의성실의 원칙에 위배되는지 여부 및 통상임금 재산정에 따른 근로자의 추가 법정수당 청구가 기업에 중대한 경영상의 어려움을 초래하거나 기업 존립을 위태롭게 하는지 판단하는 기준 [2] 갑 주식회사의 근로자인 을 등이 상여금을 통상임금에 포함하여 재산정한 미지급 법정수당 등의 지급을 구하는 것이 신의성실의 원칙에 위배되는지 문제 된 사안에서, 갑 회사의 경영상태의 악화는 예견할 수 있거나 부담해야 할 범위에 있고, 극복할 가능성이 있는 일시적 어려움이라고 볼 수 있는 등 추가 법정수당 등의 지급으로 갑 회사에 중대한 경영상 위기가 초래된다거나 기업의 존립 자체가 위태롭게 된다고 인정하기 어렵다고 한 사례
Unofficial English translation
[1] Whether an employee's claim for additional statutory allowances calculated by including regular bonuses in ordinary wages, in a case where labor and management agreed to exclude regular bonuses from ordinary wages and set the wage level on that basis, while asserting the invalidity of the labor-management agreement, violates the principle of good faith, and the criteria for determining whether the employee's claim for additional statutory allowances following the recalculation of ordinary wages causes serious managerial difficulties to the enterprise or endangers its existence [2] In a case where it was at issue whether the claim of B and others, employees of Company A, for payment of unpaid statutory allowances and the like recalculated by including bonuses in ordinary wages, violated the principle of good faith, a case holding that it is difficult to recognize that the payment of additional statutory allowances and the like causes a serious managerial crisis to Company A or endangers the existence of the enterprise itself, such as where the deterioration of Company A's managerial condition is something that could be foreseen or is within the scope to be borne, and can be regarded as a temporary difficulty that may be overcome
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결의 원고들 패소 부분 중 격려금, 성과금, 상여O/T, 하기휴가비, 월차휴가수당 청구 부분을 제외한 나머지 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 원고들의 나머지 상고를 모두 기각한다.
Unofficial English translation
Of the portion of the judgment of the court below in which the plaintiffs lost, the portion other than the claims for encouragement payments, performance bonuses, bonus O/T, summer vacation allowances, and monthly paid leave allowances is reversed, and this part of the case is remanded to the Busan High Court. All of the plaintiffs' remaining final appeals are dismissed.
Provisions referred to
[1] 민법 제2조 제1항, 근로기준법 제2조 제1항 제5호, 제15조, 제56조, 제60조, 근로기준법 시행령 제6조 제1항 [2] 민법 제2조 제1항, 근로기준법 제2조 제1항 제5호, 제6호, 제15조, 제56조, 제60조, 근로기준법 시행령 제6조 제1항, 근로자퇴직급여 보장법 제8조
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