Open Decision Ledger · Labour & industrial accidents
Overtime allowance within wages claimable for the dismissed period
Supreme Court, July 23, 2020, 2020Da221396 (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: 해고무효확인
Official text on the National Law Information Center
Question
Where an unlawful dismissal is invalid or revoked, does the wage a worker may claim under Article 538(1) of the Civil Act include an overtime allowance that the employer in fact paid month by month apart from the dismissed period, excluding January 2014 and only generally after March 2016, so that the court below erred in refusing to examine it?
Holding
The wage claimable is the wage defined in Article 2 of the Labour Standards Act. It is any money the employer pays as the price of labour, continuously and regularly, where a payment duty is imposed by a collective agreement, work rules, pay regulations, an employment contract or labour practice, whatever its name, and it is not confined to ordinary wages. Because the plaintiff generally received KRW 669,000 a month as overtime allowance outside the dismissed period, apart from January 2014, with no special circumstance such as a lack of need for extra overtime or a budget shortage, the court below had to examine concretely whether overtime allowance beyond ten hours a month would have been paid during that period.
Points at issue, verbatim
시간외근무수당은 실제 근무한 경우 지급되는 것임을 전제로 을이 해고기간 중 당연히 받을 수 있었던 임금이라고 보기 어렵다고 한 원심판단에 법리오해의 위법이 있다고 한 사례
Unofficial English translation
a case where it was held erroneous as a misapprehension of legal principles that, on the premise that the allowance for overtime work is paid only where work is actually performed, the judgment of the court below could not regard the allowance for overtime work as wages that B would necessarily have received during the period of dismissal
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 시간외근무수당 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed with regard to the allowance for overtime work, and the case in that part is remanded to the Suwon District Court. The remaining appeal is dismissed.
Form of the test
Elements stated Stated in the decision
여기에서 근로자가 지급을 청구할 수 있는 임금은 근로기준법 제2조에서 정하는 임금을 의미하므로, 사용자가 근로의 대가로 근로자에게 지급하는 일체의 금원으로서 계속적·정기적으로 지급되고 이에 관하여 단체협약, 취업규칙, 급여규정, 근로계약, 노동관행 등에 의하여 사용자에게 지급의무가 지워져 있다면 명칭 여하를 불문하고 모두 이에 포함되며, 반드시 통상임금으로 국한되는 것은 아니다
Unofficial English translation
The wages that an employee may claim payment of here mean the wages as defined in Article 2 of the Labor Standards Act; accordingly, all monies that the employer pays to the employee as a consideration for labor, which are paid continuously and regularly and for which an obligation of payment is imposed on the employer by a collective agreement, rules of employment, wage regulations, an employment contract, labor practices, etc., are included therein regardless of their designation, and they are not necessarily limited to ordinary wages
Factors
- 사용자의 부당한 해고처분이 무효이거나 취소된 경우, 근로자가 지급을 청구할 수 있는 임금의 범위
- 갑 재단법인에서 근무하다가 부당해고 후 복직한 을이 갑 법인을 상대로 계속 근로하였을 경우 받을 수 있는 임금으로 시간외근무수당 미지급분의 지급을 구한 사안에서
- 시간외근무수당은 실제 근무한 경우 지급되는 것임을 전제로 을이 해고기간 중 당연히 받을 수 있었던 임금이라고 보기 어렵다고 한 원심판단에 법리오해의 위법이 있다고 한 사례
Unofficial English translation
• The scope of wages that an employee may claim payment of where an employer's unfair dismissal is null and void or has been revoked
• In a case in which B, who had worked at A Foundation and was reinstated after an unfair dismissal, sought payment of the unpaid portion of the allowance for overtime work from A Corporation as wages that B would have received had B continued to work,
• a case where it was held erroneous as a misapprehension of legal principles that, on the premise that the allowance for overtime work is paid only where work is actually performed, the judgment of the court below could not regard the allowance for overtime work as wages that B would necessarily have received during the period of dismissal
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2012. 2. 9. 선고 2011다20034 판결(공2012상, 427)
Unofficial English translation
Supreme Court Decision 2011Da20034 decided February 9, 2012 (Gong 2012 Sang, 427)
Decisions referred to
[1] 대법원 2012. 2. 9. 선고 2011다20034 판결(공2012상, 427)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How is it determined what overtime beyond ten hours a month would in fact have been worked during the dismissed period, where the plaintiff performed no work then?
The remand judgment of the Suwon District Court on the overtime allowance will show how the required examination is carried out. A later decision on when an overtime allowance is a wage paid continuously and regularly, or an amendment to Article 2 or Article 56 of the Labour Standards Act or to Article 6(1) of its Enforcement Decree, would call for 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 5 (factors).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary treats the holding as setting out the requirements for recoverable wages (요건 제시), while the independent treats it as applying the rule to the employee's facts (사안 적용), since the Court remanded for concrete examination.
시간외근무수당은 실제 근무한 경우 지급되는 것임을 전제로 을이 해고기간 중 당연히 받을 수 있었던 임금이라고 보기 어렵다고 한 원심판단에 법리오해의 위법이 있다고 한 사례Axis 5 (Factors): Primary “사용자의 부당한 해고처분이 무효이거나 취소된 경우, 근로자가 지급을 청구할 수 있는 임금의 범위 / 갑 재단법인에서 근무하다가 부당해고 후 복직한 을이 갑 법인을 상대로 계속 근로하였을 경우 받을 수 있는 임금으로 시간외근무수당 미지급분의 지급을 구한 사안에서 / 시간외근무수당은 실제 근무한 경우 지급되는 것임을 전제로 을이 해고기간 중 당연히 받을 수 있었던 임금이라고 보기 어렵다고 한 원심판단에 법리오해의 위법이 있다고 한 사례” vs Independent “사용자의 부당한 해고처분이 무효이거나 취소된 경우 / 계속 근로하였을 경우 받을 수 있는 임금 / 시간외근무수당은 실제 근무한 경우 지급되는 것임을 전제로”
The primary centers on the plaintiff's actual monthly receipt of overtime pay and the absence of special circumstances, while the independent centers on the wage the employee would have received through continued employment and the premise of actual work. The central factors differ.
사용자의 부당한 해고처분이 무효이거나 취소된 경우Raw 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 Suwon District Court, in its judgment of 22 January 2020 (2019Na74065), kept the first-instance judgment in full. It accepted that the reasons for the dismissal were made out and that the measure was not too heavy, and rejected the plaintiff's claims for a declaration that the dismissal was invalid and for unpaid wages. On the overtime allowance it reasoned that allowance beyond ten hours a month was paid only where the work was actually done, so the plaintiff could not be said to have been surely entitled to it during the dismissed period. It also dismissed the claim for the 2015 management performance bonus, holding that it would not have been paid even without the dismissal.
Supreme Court standard: The Supreme Court found no error in the findings on the disciplinary reason and on the weight of the measure, and none in the dismissal of the management performance bonus claim. On the overtime allowance it held that the payments of KRW 669,000 a month outside the dismissed period raised a likelihood that the sum fell within the wages claimable for continuous employment, and that the court below had to examine concretely whether allowance beyond ten hours a month would have been paid during the dismissed period. Ground three of the appeal was therefore well founded, and the overtime part of the judgment below was reversed and sent back to the Suwon District Court, the other grounds being dismissed.
Distinguishing conditions
- A case with a special circumstance such as a lack of need for additional overtime during the dismissed period, or a budget shortage that kept other workers from receiving the allowance, which the decision found absent on this record.
- An allowance that is not paid continuously and regularly, or on which no payment duty rests on the employer under a collective agreement, work rules, pay regulations, an employment contract or labour practice.
- A claim for the management performance bonus, on which the Supreme Court found no error in the dismissal below.
Record verification notes
Set against the file the employer's guideline on overtime and holiday work pay, which recognised ten hours of basic overtime a month and limited weekday overtime to twelve hours a week, and the record of what the plaintiff actually received each month from February 2013 to November 2014, excluding January 2014, and after returning in March 2016. Then look for any special circumstance the employer can show about the dismissed period itself, since the Supreme Court relied on its absence.
From the official text
Points at issue
[1] 사용자의 부당한 해고처분이 무효이거나 취소된 경우, 근로자가 지급을 청구할 수 있는 임금의 범위 [2] 갑 재단법인에서 근무하다가 부당해고 후 복직한 을이 갑 법인을 상대로 계속 근로하였을 경우 받을 수 있는 임금으로 시간외근무수당 미지급분의 지급을 구한 사안에서, 시간외근무수당은 실제 근무한 경우 지급되는 것임을 전제로 을이 해고기간 중 당연히 받을 수 있었던 임금이라고 보기 어렵다고 한 원심판단에 법리오해의 위법이 있다고 한 사례
Unofficial English translation
[1] The scope of wages that an employee may claim payment of where an employer's unfair dismissal is null and void or has been revoked [2] A case where it was held erroneous as a misapprehension of legal principles that, in a case in which B, who had worked at A Foundation and was reinstated after an unfair dismissal, sought payment of the unpaid portion of the allowance for overtime work from A Corporation as wages that B would have received had B continued to work, the judgment of the court below could not regard, on the premise that the allowance for overtime work is paid only where work is actually performed, the allowance for overtime work as wages that B would necessarily have received during the period of dismissal
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 시간외근무수당 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed with regard to the allowance for overtime work, and the case in that part is remanded to the Suwon District Court. The remaining appeal is dismissed.
Provisions referred to
[1] 민법 제538조 제1항, 근로기준법 제2조 제1항 제5호, 근로기준법 시행령 제6조 제1항 [2] 민법 제538조 제1항, 근로기준법 제2조 제1항 제5호, 제56조, 근로기준법 시행령 제6조 제1항
Read 2026-10-25 · Cross-read 2026-10-25. 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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