Open Decision Ledger · Labour & industrial accidents
Presumption of sales profit and fixed costs lost to an unlawful strike
Supreme Court, Nov. 29, 2018, 2016Da12748 (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: 손해배상(기)등
Official text on the National Law Information Center
Question
When a manufacturer cannot operate because of an unlawful holiday or strike, what must it prove to recover lost sales profit and wasted fixed costs, and may it presume that the products it would have produced would have been sold, so that the sales profit was earned and the fixed costs recovered?
Holding
The manufacturer must prove not only that a certain quantity of products was not produced because of the unlawful holiday, but also that the products could have been sold. Unless there is indirect counterproof of special circumstances, such as a loss-making product, an economic depression making sale over a long period unlikely, or defects that prevent proper sale, it is proper to presume that the products would have been sold, that the manufacturer would have earned the sales profit from them, and that the fixed costs spent on producing them would have been recovered as part of the cost of sales.
Points at issue, verbatim
쟁의행위 당일 위 공장에서의 자동차생산량은 특별한 사정이 없는 한 가동시간에 비례하여 결정된다고 볼 여지가 있는데도, 쟁의행위로 발생한 가동중단시간 동안 갑 회사가 지출한 비용이 쟁의행위에 의한 고정비 지출로 인한 손해에 해당하지 않는다고 본 원심판단에 법리오해 등의 잘못이 있다고 한 사례
Unofficial English translation
In a case where costs expended by Company A during the suspension of operation caused by the industrial action were held not to constitute damages arising from fixed-cost expenditures due to the industrial action, despite the fact that there is room to regard the volume of automobiles produced at the factory on the day of the industrial action as, absent special circumstances, determined in proportion to operating hours — a case in which the judgment of the court below was found to contain errors such as misapprehension of legal principles
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 원고 패소 부분 중 피고 4, 피고 5, 피고 9, 피고 13을 제외한 나머지 피고들에 대한 고정비 지출로 인한 손해 부분을 파기하고, 이 부분 사건을 대전고등법원에 환송한다. 원고의 나머지 상고 및 피고 1, 피고 2의 상고를 각 기각한다.
Unofficial English translation
The portion of the judgment of the court below dismissing the plaintiff's claim against the defendants, insofar as it concerns damages arising from fixed-cost expenditures as to all of the defendants other than Defendant 4, Defendant 5, Defendant 9 and Defendant 13, is reversed, and this part of the case is remanded to the Daejeon High Court. The plaintiff's remaining final appeal and the final appeals of Defendant 1 and Defendant 2 are each dismissed.
Form of the test
Elements stated Stated in the decision
이러한 손해의 배상을 구하는 측에서는 불법휴무로 인하여 일정량의 제품을 생산하지 못하였다는 점뿐만 아니라, 생산되었을 제품이 판매될 수 있다는 점까지 증명하여야 할 것이지만
Unofficial English translation
The party seeking compensation for such damages must prove not only that a certain quantity of products was unable to be produced due to the illegal work stoppage, but also that the products that would have been produced could have been sold, but
Factors
- 제조업체가 불법휴무로 인하여 조업을 하지 못함으로써 입은 손해의 배상을 구하기 위하여 증명하여야 할 사항 및 이때 간접반증이 없는 한 제품이 생산되었다면 그 후 판매되어 제조업체가 매출이익을 얻고 생산에 지출된 고정비용을 회수할 수 있다고 추정되는지 여부(적극)
- 쟁의행위 당일 위 공장에서의 자동차생산량은 특별한 사정이 없는 한 가동시간에 비례하여 결정된다고 볼 여지가 있는데도
- 쟁의행위로 발생한 가동중단시간 동안 갑 회사가 지출한 비용이 쟁의행위에 의한 고정비 지출로 인한 손해에 해당하지 않는다고 본 원심판단에 법리오해 등의 잘못이 있다고 한 사례
Unofficial English translation
• Matters that a manufacturer must prove in seeking compensation for damages suffered by being unable to operate due to an illegal work stoppage, and whether, absent indirect rebuttal evidence, it may be presumed that, had the products been produced, they would thereafter have been sold so that the manufacturer would have earned sales profit and been able to recover the fixed costs expended in production (affirmative)
• despite the fact that there is room to regard the volume of automobiles produced at the factory on the day of the industrial action as, absent special circumstances, determined in proportion to operating hours,
• a case in which the judgment of the court below, holding that costs expended by Company A during the suspension of operation caused by the industrial action do not constitute damages arising from fixed-cost expenditures due to the industrial action, was found to contain errors such as misapprehension of legal principles
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1993. 12. 10. 선고 93다24735 판결(공1994상, 346)
Unofficial English translation
Supreme Court Decision 93Da24735 decided December 10, 1993 (Gong 1994 Sang, 346)
Decisions referred to
[1] 대법원 1993. 12. 10. 선고 93다24735 판결(공1994상, 346)
Burden of proof
The party asserting Stated in the decision
이러한 손해의 배상을 구하는 측에서는 불법휴무로 인하여 일정량의 제품을 생산하지 못하였다는 점뿐만 아니라, 생산되었을 제품이 판매될 수 있다는 점까지 증명하여야 할 것이지만
Unofficial English translation
The party seeking compensation for such damages must prove not only that a certain quantity of products was unable to be produced due to the illegal work stoppage, but also that the products that would have been produced could have been sold, but
Open question and revisit condition
Where a strike stoppage and an equipment malfunction stop the same line in overlapping periods, how is the production lost to each cause apportioned on the operating time?
The remand judgment of the Daejeon High Court in case 2013Na1882, deciding which part of the 55 minutes produced no vehicles, will show how the presumption works in practice. A change to Article 750 or Article 763 of the Civil Act or to Article 3 of the Trade Union and Labour Relations Adjustment Act, or a later Supreme Court decision varying the presumption, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 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 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary treats the judgment as setting out the requirements for proof, while the independent treats it as applying the standard to the facts of the case, since the court found the lower court's reasoning deficient on the record.
쟁의행위 당일 위 공장에서의 자동차생산량은 특별한 사정이 없는 한 가동시간에 비례하여 결정된다고 볼 여지가 있는데도Axis 8 (Open question and revisit condition): Primary “Where a strike stoppage and an equipment malfunction stop the same line in overlapping periods, how is the production lost to each cause apportioned on the operating time?” vs Independent “How much of the 55-minute stoppage actually prevented production, and what fixed-cost damages are recoverable for that time?”
The primary asks how to apportion production loss between overlapping strike and equipment causes, while the independent asks how much of the 55-minute stoppage actually prevented production. They are related but frame different gaps.
쟁의행위 당일 위 공장에서의 자동차생산량은 특별한 사정이 없는 한 가동시간에 비례하여 결정된다고 볼 여지가 있는데도, 쟁의행위로 발생한 가동중단시간 동안 갑 회사가 지출한 비용이 쟁의행위에 의한 고정비 지출로 인한 손해에 해당하지 않는다고 본 원심판단에 법리오해 등의 잘못이 있다고 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 Daejeon High Court, in its judgment of 21 January 2016 (2013Na1882), found that the strike halted the Asan plant's trim shop for 55 minutes, that the company spent KRW 50,275,882 during that time, and that 203 vehicles planned for production that day were not made. It nevertheless rejected the fixed-cost claim, because the plant had also stopped for about 100 minutes through equipment malfunction and about 45 minutes through breakdowns, so the part of the production fall caused by the strike could not be isolated, planned vehicles were not always sold in full, stock could meet demand, and the company's production management through stock and overtime absorbed the fall. It also held that the strike exceeded the limits of legitimacy and that Defendants 1 and 2, who planned and led it, had to compensate the company.
Supreme Court standard: The Supreme Court held that the appellate findings disclosed no special circumstance making long-term sale impossible or showing a loss-making product. The record showed that the trim shop used a conveyor flow line, that output was set at 63 vehicles an hour, that 210 vehicles over the 200 minutes of all stoppages was close to the 203 vehicles not made, and that output did not vary by time of day, so that there was room to view output as determined proportionately to operating time, absent special circumstances. The court below should have examined whether part of the 55 minutes produced no vehicles, and deciding otherwise on its stated reasons alone misapplied the law on damages for an unlawful strike and left the necessary examination undone. It found no error in rejecting the defence of a lawful strike or in holding Defendants 1 and 2 liable, and dismissed the plaintiff's remaining appeal and their appeals.
Distinguishing conditions
- A case with special circumstances, such as a loss-making product, an economic depression making long-term sale unlikely, or defects that prevent proper sale, where the presumption of sale and recovery of fixed costs does not apply.
- A plant whose output does not vary with operating time, so that the vehicles or products lost to the stoppage cannot be measured by the operating hours.
- A claim against Defendants 4, 5, 9 and 13, which the order left outside the reversal and remand.
Record verification notes
Set the production rate per hour and the duration of the stoppage against the number of products actually not made, as the Court did with 63 vehicles an hour, the 200 minutes of all stoppages and the 203 vehicles lost. Then look for the special circumstances the Court listed, since indirect counterproof of them defeats the presumption. Finally, note that the reversal covers only the fixed-cost part against the defendants other than Defendants 4, 5, 9 and 13, and that the appeal against the rest of the plaintiff's loss claim was dismissed for want of stated grounds.
From the official text
Points at issue
[1] 제조업체가 불법휴무로 인하여 조업을 하지 못함으로써 입은 손해의 배상을 구하기 위하여 증명하여야 할 사항 및 이때 간접반증이 없는 한 제품이 생산되었다면 그 후 판매되어 제조업체가 매출이익을 얻고 생산에 지출된 고정비용을 회수할 수 있다고 추정되는지 여부(적극) [2] 자동차 제조·판매회사인 갑 주식회사가 노동조합원인 을 등을 상대로 쟁의행위로 갑 회사의 공장 가동이 중단된 시간 동안의 고정비 지출로 인한 손해의 배상을 구한 사안에서, 쟁의행위 당일 위 공장에서의 자동차생산량은 특별한 사정이 없는 한 가동시간에 비례하여 결정된다고 볼 여지가 있는데도, 쟁의행위로 발생한 가동중단시간 동안 갑 회사가 지출한 비용이 쟁의행위에 의한 고정비 지출로 인한 손해에 해당하지 않는다고 본 원심판단에 법리오해 등의 잘못이 있다고 한 사례
Unofficial English translation
[1] Matters that a manufacturer must prove in seeking compensation for damages suffered by being unable to operate due to an illegal work stoppage, and whether, absent indirect rebuttal evidence, it may be presumed that, had the products been produced, they would thereafter have been sold so that the manufacturer would have earned sales profit and been able to recover the fixed costs expended in production (affirmative) [2] In a case where Company A, an automobile manufacturing and sales company, sought compensation from B and other labor union members for damages arising from fixed-cost expenditures incurred during the period in which the operation of Company A's factory was suspended due to industrial action, holding that costs expended by Company A during the suspension of operation caused by the industrial action do not constitute damages arising from fixed-cost expenditures due to the industrial action, despite the fact that there is room to regard the volume of automobiles produced at the factory on the day of the industrial action as, absent special circumstances, determined in proportion to operating hours — a case in which the judgment of the court below was found to contain errors such as misapprehension of legal principles
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 원고 패소 부분 중 피고 4, 피고 5, 피고 9, 피고 13을 제외한 나머지 피고들에 대한 고정비 지출로 인한 손해 부분을 파기하고, 이 부분 사건을 대전고등법원에 환송한다. 원고의 나머지 상고 및 피고 1, 피고 2의 상고를 각 기각한다. 원고의 피고 4, 피고 5, 피고 9, 피고 13에 대한 상고비용은 원고가 부담한다.
Unofficial English translation
The portion of the judgment of the court below dismissing the plaintiff's claim against the defendants, insofar as it concerns damages arising from fixed-cost expenditures as to all of the defendants other than Defendant 4, Defendant 5, Defendant 9 and Defendant 13, is reversed, and this part of the case is remanded to the Daejeon High Court. The plaintiff's remaining final appeal and the final appeals of Defendant 1 and Defendant 2 are each dismissed. The costs of the final appeal with respect to Defendant 4, Defendant 5, Defendant 9 and Defendant 13 shall be borne by the plaintiff.
Provisions referred to
[1] 민법 제393조, 제750조, 제763조, 노동조합 및 노동관계조정법 제3조, 민사소송법 제288조 [2] 민법 제393조, 제750조, 제763조, 노동조합 및 노동관계조정법 제3조
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