Open Decision Ledger · Labour & industrial accidents
Sales commission as part of the average wage for retirement pay
Supreme Court, Nov. 11, 2021, 2020Da273939 (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: 퇴직금청구의소
Official text on the National Law Information Center
Question
Where engineers who signed a service consignment contract with Company A performed installation, after-sales service and sales work on household water purifiers and claimed retirement pay, were they workers under the Labour Standards Act, and did the sales commission they received count as part of the wages on which the average wage is calculated?
Holding
Yes to both. Reading the appellate reasons against the law and the record, the Supreme Court found no error in holding the engineers workers, since they were dedicated to the company's business, subject to rules it set unilaterally, supervised by managers, and without other income of note during the contract. Sales commission was wages too, because sales was a principal duty under the contract and a core part of the business, performed under substantial direction and supervision, and paid monthly under the contract and received almost every month. The risk that concentrated selling before leaving could inflate retirement pay is met by calculating the average wage on the three months before the deliberate act, not by excluding the commission.
Points at issue, verbatim
제반 사정에 비추어 을 등은 근로기준법상 갑 회사의 근로자에 해당하고, 을 등이 갑 회사로부터 지급받은 설치·AS 수수료뿐만 아니라 판매수수료 역시 평균임금 산정의 기초가 되는 임금에 해당한다고 한 사례
Unofficial English translation
In view of all circumstances, B et al. correspond to employees of Company A under the Labor Standards Act, and the sales commissions received by B et al. from Company A as well as the installation and A/S commissions also correspond to wages that form the basis for calculation of average wages — a case in which this was so held
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 원고 17, 원고 18을 제외한 나머지 원고들의 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 피고의 상고를 모두 기각한다.
Unofficial English translation
The parts of the judgment of the court below in which the plaintiffs other than Plaintiff 17 and Plaintiff 18 lost are reversed, and this part of the case is remanded to the Seoul High Court. All appeals of the defendant are dismissed.
Form of the test
Elements stated Stated in the decision
평균임금 산정의 기초가 되는 임금은 사용자가 근로의 대가로 근로자에게 지급하는 금품으로서, 근로자에게 계속적·정기적으로 지급되고 단체협약, 취업규칙, 급여규정, 근로계약, 노동관행 등에 의하여 사용자에게 그 지급의무가 지워져 있는 것을 말한다
Unofficial English translation
Wages that form the basis for calculation of average wages refer to money and goods paid by the employer to the employee as consideration for work, which are paid continuously and regularly to the employee and for which the obligation of payment is imposed upon the employer by collective agreements, rules of employment, wage regulations, labor contracts, labor practices, etc.
Factors
- 제반 사정에 비추어 을 등은 근로기준법상 갑 회사의 근로자에 해당하고
- 을 등이 갑 회사로부터 지급받은 설치·AS 수수료뿐만 아니라 판매수수료 역시 평균임금 산정의 기초가 되는 임금에 해당한다고 한 사례
Unofficial English translation
• In view of all circumstances, B et al. correspond to employees of Company A under the Labor Standards Act, and
• the sales commissions received by B et al. from Company A as well as the installation and A/S commissions also correspond to wages that form the basis for calculation of average wages — a case in which this was so held
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 5. 31. 선고 2000다18127 판결, 대법원 2018. 10. 12. 선고 2015두36157 판결 등 참조
Unofficial English translation
See Supreme Court Decision 2000Da18127 decided May 31, 2002, Supreme Court Decision 2015Du36157 decided October 12, 2018, etc.
Decisions referred to
[1] 대법원 2002. 5. 31. 선고 2000다18127 판결(공2002하, 1517), 대법원 2018. 10. 12. 선고 2015두36157 판결(공2018하, 2117)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How much direction and supervision must a company exercise over sales work before the commission paid for it is a wage rather than payment for an independent contractor's results?
The remand judgment of the Seoul High Court on the sales commission of the plaintiffs other than Plaintiffs 17 and 18 will show how the wage test is applied to these facts. A later decision narrowing or widening the meaning of continuous and regular payment, or an amendment to Article 2(1)(v) and (vi) of the Labour Standards Act or Article 8(1) of the Guarantee of Employees' Retirement Benefits Act, 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) · 2026-10-26
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 source states both a general wage rule and a case specific application so the primary reads it as stating requirements while the independent reads it as applying law to facts.
을 등이 갑 회사로부터 지급받은 설치·AS 수수료뿐만 아니라 판매수수료 역시 평균임금 산정의 기초가 되는 임금에 해당한다고 한 사례Axis 8 (Open question and revisit condition): Primary “How much direction and supervision must a company exercise over sales work before the commission paid for it is a wage rather than payment for an independent contractor's results?” vs Independent “What amounts of additional severance pay are owed to the remanded plaintiffs once sales commissions are included?”
The primary asks for the direction threshold that makes sales pay a wage while the independent asks for the additional severance amounts owed on remand.
제반 사정에 비추어 을 등은 근로기준법상 갑 회사의 근로자에 해당하고, 을 등이 갑 회사로부터 지급받은 설치·AS 수수료뿐만 아니라 판매수수료 역시 평균임금 산정의 기초가 되는 임금에 해당한다고 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 Seoul High Court, in its judgment of 18 September 2020 (2019Na2022249), held that the plaintiffs were workers of the defendant company and that the installation and after-sales service commission was part of the wages for the average wage. It excluded the sales commission, reasoning that the plaintiffs had no duty to perform sales work, that the company exercised little direction or supervision over it, that the commission followed individual sales results rather than the labour supplied, and that including it would let plaintiffs deliberately raise retirement pay by concentrated selling before leaving.
Supreme Court standard: The Supreme Court affirmed the finding on worker status, holding that the court below had not breached the rules of logic and experience or misread the criteria under the Labour Standards Act. It reversed on the sales commission: sales was a principal duty under the contract and a core part of the company's business, directed and supervised through managers, paid monthly under the contract and received almost every month, so it was a payment the company was obliged to make continuously and regularly. The concern about deliberate inflation was met by the statutory calculation on the three months before the deliberate act, and the case was remanded on that point.
Distinguishing conditions
- A plaintiff who performed only installation and after-sales service work and received no sales commission, like Plaintiffs 17 and 18, who were left out of the part reversed.
- A commission paid without a contractual payment obligation, or paid irregularly rather than continuously and regularly, since the Court relied on the contract's monthly payment term and the near-monthly receipt.
- Sales work in which the company exercised no substantial direction or supervision, since the Court found the sales activity performed under that supervision.
Record verification notes
Check the contract for a duty to perform sales work and a monthly payment obligation, and gather evidence of how sales targets were set through the regional and office hierarchy and enforced with reprimands or extra duties. Then separate plaintiffs who received sales commission from those who did not, and check whether any three months of concentrated selling fall before the deliberate act, since the average wage is then calculated on that period.
From the official text
Points at issue
[1] 평균임금 산정의 기초가 되는 임금의 범위 [2] 갑 주식회사와 서비스용역위탁계약을 체결한 후 갑 회사가 제조·판매하는 정수기 등 가정용 기기에 대한 설치·AS 및 판매 등 업무를 수행한 을 등이 갑 회사를 상대로 퇴직금 지급을 구한 사안에서, 제반 사정에 비추어 을 등은 근로기준법상 갑 회사의 근로자에 해당하고, 을 등이 갑 회사로부터 지급받은 설치·AS 수수료뿐만 아니라 판매수수료 역시 평균임금 산정의 기초가 되는 임금에 해당한다고 한 사례
Unofficial English translation
[1] Scope of wages that form the basis for calculation of average wages [2] In a case where B et al., who entered into a service outsourcing contract with Company A and performed work such as installation, A/S, and sales of water purifiers and other household appliances manufactured and sold by Company A, sought payment of retirement benefits from Company A, a case where, in view of all circumstances, B et al. correspond to employees of Company A under the Labor Standards Act, and the sales commissions received by B et al. from Company A as well as the installation and A/S commissions also correspond to wages that form the basis for calculation of average wages
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 원고 17, 원고 18을 제외한 나머지 원고들의 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 피고의 상고를 모두 기각한다. 원고 17, 원고 18과 피고 사이에 생긴 상고비용은 피고가 부담한다.
Unofficial English translation
The parts of the judgment of the court below in which the plaintiffs other than Plaintiff 17 and Plaintiff 18 lost are reversed, and this part of the case is remanded to the Seoul High Court. All appeals of the defendant are dismissed. The appeal costs arising between Plaintiff 17, Plaintiff 18 and the defendant shall be borne by the defendant.
Provisions referred to
[1] 근로기준법 제2조 제1항 제5호, 제6호 [2] 근로기준법 제2조 제1항 제1호, 제5호, 제6호, 근로자퇴직급여 보장법 제8조 제1항
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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