부당한 장래적 판례변경 - 대법원 2024. 12. 19. 선고 2020다247190, 2023다302838 전원합의체 판결

• 영문명: Unjust Prospective Overruling by the Supreme Court of Korea on 19 December 2024 - 2020Da247190, 2023Da302838
• 발행기관: 한국민사소송법학회
• 저자명: 박진재(Jinjae Park)
• 간행물 정보: 『민사소송』제29권 제1호, 369~388쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.02.28

국문 초록

The Supreme Court of Korea overruled its former rulings regarding what counts as ‘ordinary wage’ at 2020Da247190, 2023Da302838 Decisions (hereafter, collectively ‘the current decision’) on 19 December 2024 whilst limiting the retroactivity of the new ruling to the current decision cases and similar cases that have already been brought to courts by lawsuit at the time of the current decision. Such prospective overruling is the fourth ever in the history of the Korean Judiciary. The first and the second were both overrulings of selective prospectivity while the third was an overruling of pure prospectivity. The current decision is another overruling of selective prospectivity as it allows retroactivity of the ruling to the similar cases already at courts. The current decision has three problems. First of all, it is unfair. The workers appreciative of the relationship with their employers who had not yet sued their employers are now bound to lose out on what was righteously their rights according to the law. Secondly, it is unnecessary. The socio-economic impact of this overruling was bound to be limited by the extinctive prescription of wages under the Labor Standards Act. Thirdly, it is inappropriate. The role of the judiciary is not to make law but rather to interpret the law. If it can make the application of the law prospective as it corrects the interpretation of the law, then the judiciary is usurping the legislature. Hence, I disagree with this unjust decision.

목차

Ⅰ. 서설

Ⅱ. 장래적 판례변경

Ⅲ. 대상판결에서 장래적 판례변경의 문제점

Ⅳ. 결론

키워드

장래적 판례변경 선택적 장래효 순수 장래효 민사판례의 소급효와 장래효 통상임금 prospective overruling selective prospectivity pure prospectivity retroactivity and prospectivity of civil judgments Ordinary Wage