Open Decision Ledger · Labour & industrial accidents
Working time, normal wages, holiday allowance and non-duplicated premium pay
Supreme Court, Sept. 28, 2018, 2017Da53210 (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·임금·임금
Official text on the National Law Information Center
Question
How is a contractually set rest or sleep period classified as working time or break time, what makes a payment normal wages and what does 'fixity' mean, may the holiday allowance under Article 55 of the former Labour Standards Act be computed on normal wages, and may holiday premium pay and overtime premium pay be paid in addition to each other?
Holding
Rest or sleep time is working time rather than break time where the worker is not genuinely free to use it and remains under the employer's direction, and that is decided case by case on the contract, the workplace rules, the content of the work and the employer's interference, not uniformly by the type of work. A payment belongs to normal wages when it is consideration for the agreed work and paid regularly, uniformly and fixedly, 'fixity' meaning that payment is certain regardless of results or further conditions, and the holiday allowance under Article 55 of the former Labour Standards Act may be computed on normal wages. Holiday working hours fall outside both the weekly standard hours and the weekly overtime hours, so the two premium pays may not be paid in addition to each other.
Points at issue, verbatim
휴일근로에 따른 가산임금과 연장근로에 따른 가산임금이 중복하여 지급될 수 있는지 여부(소극)
Unofficial English translation
Whether additional wages for holiday work and additional wages for extended work may be paid in duplication (negative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 대전고등법원에 환송한다. 원고들의 상고를 모두 기각한다.
Unofficial English translation
The portion of the judgment of the court below finding against the defendant is reversed, and the case as to this portion is remanded to the Daejeon High Court. All appeals of the plaintiffs are dismissed.
Form of the test
Elements stated Stated in the decision
여기서 ‘고정성’이라 함은 ‘근로자가 제공한 근로에 대하여 그 업적, 성과 기타의 추가적인 조건과 관계없이 당연히 지급될 것이 확정되어 있는 성질’을 말한다
Unofficial English translation
Here, 'fixedness' means 'the quality whereby, in respect of the labor provided by the employee, it is determined that payment will naturally be made regardless of the achievements, results, or other additional conditions'
Factors
- 근로계약에서 정한 휴식시간이나 수면시간이 근로시간에 속하는지 휴게시간에 속하는지 판단하는 기준
- 어떠한 임금이 통상임금에 속하는지 판단하는 기준 및 통상임금의 개념적 징표로서 ‘고정성’의 의미
- 구 근로기준법 제55조에 따른 ‘주휴수당’이 통상임금을 기초로 산정할 수당인지 여부(적극)
- 휴일근로에 따른 가산임금과 연장근로에 따른 가산임금이 중복하여 지급될 수 있는지 여부(소극)
Unofficial English translation
• The criteria for determining whether a rest period or sleep period stipulated in an employment contract falls within working hours or within a rest period
• The criteria for determining which wages fall within ordinary wages and the meaning of 'fixedness' as a conceptual indicator of ordinary wages
• Whether the 'weekly holiday allowance' under the former Labor Standards Act Article 55 is an allowance that must be calculated on the basis of ordinary wages (affirmative)
• Whether additional wages for holiday work and additional wages for extended work may be paid in duplication (negative)
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 decided December 18, 2013 (Gong 2014 Sang, 236)
Decisions referred to
[1] 대법원 2017. 12. 5. 선고 2014다74254 판결(공2018상, 30) / [2] 대법원 2013. 12. 18. 선고 2012다89399 전원합의체 판결(공2014상, 236) / [3] 대법원 2010. 1. 28. 선고 2009다74144 판결, 대법원 2012. 3. 29. 선고 2010다91046 판결 / [4] 대법원 2018. 6. 21. 선고 2011다112391 전원합의체 판결(공2018하, 1359)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Once holiday premium pay and overtime premium pay may not be duplicated, how are the hours falling on a holiday that also exceed the weekly overtime hours allocated between the two, and at what rates is each part paid?
The remand judgment of the Daejeon High Court on the duplicated premium pays will show how the hours and rates are divided in practice. A later en banc decision of the Supreme Court on holiday and overtime premium pay, or an amendment to Articles 50, 53 or 56 of the Labour 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) · 2026-10-26
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 “Once holiday premium pay and overtime premium pay may not be duplicated, how are the hours falling on a holiday that also exceed the weekly overtime hours allocated between the two, and at what rates is each part paid?” vs Independent “What amounts will remain payable to each employee after recalculation without overlapping holiday and overtime premiums on remand?”
The primary asks how overlapping holiday and overtime hours and rates are allocated, while the independent asks what concrete amounts remain payable on remand.
휴일근로에 따른 가산임금과 연장근로에 따른 가산임금이 중복하여 지급될 수 있는지 여부(소극)Raw 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 2 November 2017 (2015Na715, 2015Na722, 2015Na739), held that the 10-minute break given two hours into work where more than three hours of overtime were worked was not working time, because it could not be said that the workers had failed to escape the employer's direction and orders and were not assured of genuine free use. It refused the defendant's claim that the 10-minute snack break given before overtime began was also outside working time, since it could not tell whether the workers had escaped the employer's direction and been assured of genuine free use. It held the bonus was normal wages, refused to deduct monthly paid leave allowances already paid from the recalculated annual leave allowance, computed the holiday allowance on the recalculated normal wages including the bonus, and held that holiday premium pay and overtime premium pay had to be paid in addition to each other.
Supreme Court standard: The Supreme Court found no error in the court below on working time, on treating the bonus as normal wages, on refusing the offset of monthly paid leave allowances, and on computing the holiday allowance on the recalculated normal wages including the bonus. It held only that the premium pays could not be duplicated, because holiday working hours under the former Labour Standards Act are included neither in the weekly standard hours nor in the weekly overtime hours, so the court below had misread the meaning of 'week' in Articles 50 and 53 and the premium pay rules in Article 56. It reversed the part of the judgment in which the defendant lost, remanded that part to the Daejeon High Court, and dismissed all of the plaintiffs' appeals, the Justices being unanimous.
Distinguishing conditions
- Rest or sleep time during which the worker is genuinely free from the employer's direction and a break place is available, so that it is break time.
- A payment that is not consideration for the agreed work or is not paid regularly, uniformly and fixedly, so that it is not normal wages.
- A case governed by the Labour Standards Act as amended by Act No. 15513 of 20 March 2018, since the holiday allowance and the premium pay rules were applied in their pre-amendment form.
Record verification notes
Set the employment contract, the workplace rules and the collective agreement against each rest period and each payment, since the Court decides working time and 'fixity' on the contract, the rules and the concrete working method rather than the type of work. Check whether the collective agreement keeps monthly paid leave separate from annual leave, because the offset refused by the court below turned on that contractual right. Finally confirm which version of the Labour Standards Act governs the periods claimed, as the non-duplication of premium pays was decided under the former Act.
From the official text
Points at issue
[1] 근로계약에서 정한 휴식시간이나 수면시간이 근로시간에 속하는지 휴게시간에 속하는지 판단하는 기준 [2] 어떠한 임금이 통상임금에 속하는지 판단하는 기준 및 통상임금의 개념적 징표로서 ‘고정성’의 의미 [3] 구 근로기준법 제55조에 따른 ‘주휴수당’이 통상임금을 기초로 산정할 수당인지 여부(적극) [4] 휴일근로에 따른 가산임금과 연장근로에 따른 가산임금이 중복하여 지급될 수 있는지 여부(소극)
Unofficial English translation
[1] The criteria for determining whether a rest period or sleep period stipulated in an employment contract falls within working hours or within a rest period [2] The criteria for determining which wages fall within ordinary wages and the meaning of 'fixedness' as a conceptual indicator of ordinary wages [3] Whether the 'weekly holiday allowance' under the former Labor Standards Act Article 55 is an allowance that must be calculated on the basis of ordinary wages (affirmative) [4] Whether additional wages for holiday work and additional wages for extended work may be paid in duplication (negative)
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
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 대전고등법원에 환송한다. 원고들의 상고를 모두 기각한다.
Unofficial English translation
The portion of the judgment of the court below finding against the defendant is reversed, and the case as to this portion is remanded to the Daejeon High Court. All appeals of the plaintiffs are dismissed.
Provisions referred to
[1] 근로기준법 제50조, 제54조 [2] 근로기준법 제2조 제1항 제5호, 근로기준법 시행령 제6조 제1항 [3] 구 근로기준법(2018. 3. 20. 법률 제15513호로 개정되기 전의 것) 제55조(현행 제55조 제1항 참조) [4] 구 근로기준법(2018. 3. 20. 법률 제15513호로 개정되기 전의 것) 제50조 제1항, 제53조 제1항, 제55조(현행 제55조 제1항 참조), 제56조, 구 근로기준법 시행령(2018. 6. 29. 대통령령 제29010호로 개정되기 전의 것) 제30조(현행 제30조 제1항 참조)
Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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