노동관행의 성립과 효력 - 대판 2001.10.23, 2001다53950

The formation and force of Labor Practice

&nbsp;&nbsp;This purpose of this study is to analyze the verdict pronounced by the Supreme Court on October 23, 2001(No. 2001Da53950 Verdict) on the premium for special products paid by the employer.<BR>&nbsp;&nbsp;The contents of this verdict is the fact that the Supreme Court considers the premium for special products paid by the employer as wage, because this premium was paid on the ground of labor practice.<BR>&nbsp;&nbsp;I suggest three problems on this verdict:<BR>&nbsp;&nbsp;First, this verdict is against the other verdict pronounced by the Supreme Court on May 31, 2002(No. 2000Da18127 Verdict) on the wage, because the latter claims that premium has the nature of exchanging labor to be the wage regardless of periodic, continuous and uniform pay. So there is inconsistency between the former and the latter.<BR>&nbsp;&nbsp;Second, the employer should not have the recognition to oppose the formation of labor practice. In this case, periodic, continuous and uniform pay should not be considered as wage because there is the employer`s recognition to oppose the formation of labor practice.<BR>&nbsp;&nbsp;Third, labor practice has legal force on the industrial issues. It is problem to give the labor practice general legal force without the distinction between the labor practice that is factual custom and the labor practice that is not it.<BR>&nbsp;&nbsp;In this case, it is inappropriate to give legal force the labor practice because this is not factual custom.<BR>&nbsp;&nbsp;In the conclusion, Supreme Court should judge if the periodic, continuous and uniform pay has the nature of exchanging labor or labor practice consists the factual custom in advance of others. If it is so, it has legal force.