연장근로에서 상한의 적용 — 대법원 2023. 12. 7. 선고 2020도15393 판결의 검토를 중심으로 —

초록

The purpose of this article is to critically examine the ruling of the Supreme Court on December 7, 2023, Case No. 2020Do15393 (hereinafter referred to as the “this ruling,” and the case in question as the “this case”). The main points of this ruling can be summarized in four rules. First, only overtime exceeding 52 hours per a week is subject to criminal penalty. Second, there is no limit to the number of overtime hours per a day. Third, the calculation of overtime hours differs in the application of criminal penalty from in the calculation of overtime pay. Fourth, if daily working hours exceed 12 hours, the employer must provide additional rest time to the employee in accordance with Article 54 of the Labor Standards Act. The contentious issue in the ruling concerns the application of the “12-hour per week” limit in Article 53, Paragraph 1 of the Labor Standards Act. Most academics held that this applies not only when the total working hours exceeding 40 hours per a week exceed 12 hours, but also when the total working hours exceeding 8 hours per a day exceed 12 hours even if the total working hours are less than 52 hours per week. However, the relevant ruling ruled that this only applies when the total working hours exceeding 40 hours per week exceed 12 hours. The legal interpretation of this ruling is an unnatural literal interpretation that deviates from the usual legal interpretation and is inconsistent with other provisions of the Labor Standards Act that regulate flexible work systems, etc. Moreover, the interpretation that calculating overtime hours is different in the application of penalties and calculating overtime pay deviates from the express provision and runs counter to the purpose of the relevant provisions, which is to suppress overtime work. The biggest problem with this interpretation is that it can seriously threaten workers' health due to intensive work. In order to resolve the problems of the above-mentioned target judgment, it is necessary to either interpret it as a violation of the law even if the total of working hours exceeding 8 hours per day exceeds 12 hours, or to introduce a daily rest(a rest period of at least 11 consecutive hours between work days) for all workers through new legislation.

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