The Common Benefit Claim Character of Discrimination Against a Dispatched Worker Continued During Rehabilitation Proceedings, and the Comparator and Reference Wage for a Dispatched Worker Who Has Passed the Retirement Age

1. 01Question

   When discriminatory treatment of a dispatched worker who has passed the retirement age is assessed, who should be taken as the comparator employee, and what is the reference wage for calculating the amount of damages?

2. 02Holding

   The comparator employee is, in principle, a regular employee at the user enterprise's workplace who has passed the retirement age and performs the same kind or similar work; if there is none, an employee on a fixed-term contract such as a rehired retiree (choktak); and if there is none of those either, an employee who has not passed the retirement age, provided that the circumstance of having passed the retirement age must be taken into account in determining whether a reasonable ground exists. The reference wage is the appropriate wage that the user enterprise would have paid had it hired an employee who had passed the retirement age, and the Supreme Court held that the right to claim damages arising from discrimination continued by the custodian after the commencement of the rehabilitation proceedings constitutes a common benefit claim.

   Points at issue, verbatim

   정년이 경과한 파견근로자에 대하여 사용사업주 소속 정년 미경과 근로자를 비교대상으로 하여 차별적 처우에 합리적 이유가 있는지를 판단하거나 차별적 처우로 인한 손해배상액을 산정하는 경우

   Unofficial English translation

   Where, with respect to a dispatched worker whose mandatory retirement age has elapsed, an employee of the user enterprise who has not reached the mandatory retirement age is taken as the comparison worker in determining whether there is a reasonable ground for the discriminatory treatment or in calculating the amount of damages arising from the discriminatory treatment

3. 03Disposition

   Reversed and rendered by the Supreme Court Stated in the decision

   원심판결 중 원고 1의 근로자지위확인청구 부분을 파기하고, 이 부분 제1심판결을 취소하며, 이 부분 소를 각하한다.

   Unofficial English translation

   The part of the judgment of the court below concerning the plaintiff 1's claim for confirmation of employee status is reversed, the judgment of the court of first instance in that part is set aside, and the action in that part is dismissed on procedural grounds.

4. 04Form of the test

   Elements stated Stated in the decision

   비교대상 근로자는 원칙적으로 사용사업주의 사업장에서 정년을 경과하여 같은 종류의 업무 또는 유사한 업무를 수행하는 정규직 근로자가 있다면 그 근로자가 되어야 한다.

   Unofficial English translation

   In principle, the comparison worker must be a full-time employee of the user enterprise's workplace who has reached the mandatory retirement age and performs the same type of work or similar work, if there is such an employee.

5. 05Factors

   • 관리인의 이러한 불법행위로 인한 파견근로자의 손해배상청구권이 채무자 회생 및 파산에 관한 법률 제179조 제1항 제5호의 공익채권에 해당하는지 여부(적극)
   • 현실적으로 파견근로자의 지위에서 사용사업주를 위한 근로에 종사하는 한 위와 같은 법리가 적용되는지 여부(적극)
   • 비교대상 근로자를 선정하는 방법
   • 파견근로자의 정년이 경과하였다는 사정을 불리한 처우에 합리적 이유가 있는지 판단하는 데에 고려하여야 하는지 여부(적극)

   Unofficial English translation

   • Whether the dispatched workers' right to claim damages arising from such tort of the trustee constitutes a common benefit claim under Article 179 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act (affirmative)

   • Whether the aforesaid legal principle applies so long as they actually engage in work for the user enterprise in the capacity of a dispatched worker (affirmative)

   • The method of selecting comparison workers

   • Whether the circumstance that the dispatched worker's mandatory retirement age has elapsed must be taken into account in determining whether there is a reasonable ground for the disadvantageous treatment (affirmative)

6. 06Relation to precedent

   States a new standard Read from the decision

   사용사업주가 정년이 경과한 근로자를 채용하였더라면 지급하였을 적정한 임금

   Unofficial English translation

   the reasonable wage that the user enterprise would have paid had it hired an employee whose mandatory retirement age had elapsed

   Decisions referred to

   [1][4] 대법원 2022. 7. 28. 선고 2016다40439 판결 / [1] 대법원 1991. 10. 11. 선고 91다1264 판결(공1991, 2695) / [2][4] 대법원 2020. 5. 14. 선고 2016다239024, 239031, 239048, 239055, 239062 판결(공2020하, 1070) / [3] 대법원 2005. 11. 10. 선고 2003다66066 판결(공2005하, 1939) / [4] 대법원 2015. 2. 26. 선고 2010다106436 판결(공2015상, 515) / [7] 대법원 2002. 6. 28. 선고 2000다22249 판결(공2002하, 1777)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Where there has been no precedent whatsoever of temporarily employing retired employees and no practice at similar workplaces can be confirmed, on what materials must the appropriate wage of an employee who has passed the retirement age be calculated?

   This reading will be re-examined if Article 21 of the Act on the Protection, etc. of Temporary Agency Workers or Article 179, paragraph (1), subparagraph 5 of the Debtor Rehabilitation and Bankruptcy Act is amended, or if a subsequent decision is handed down concerning the calculation of the reference wage for a dispatched worker who has passed the retirement age.

Read 2026-10-16 · Cross-read 2026-10-16. 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.

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