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(영문) 서울북부지방법원 2018.12.19 2018가단107647

퇴직금

Text

1. The claim of this case is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

(b) the facts of the basis;

A. On July 1, 2016, the Plaintiff was appointed as the Defendant’s internal director, and resigned on October 11, 2017.

(b) The articles of incorporation of the defendant of the articles of incorporation and the detailed rules on the management of benefits, which relate to retirement allowances are as follows:

(1) Article 40 (Remuneration for Director and Retirement Allowance) (2) The payment of retirement allowance for director shall be made in accordance with the provisions of payment of retirement allowance for officer decided by the general

Article 12 (Retirement Allowances) of the Regulations on the Management of Pay and Benefit.

1. Payment of retirement allowances to all employees, including officers;

Provided, That in cases of a registered executive, the representative director may be separately determined and paid.

2. Retirement benefits shall be paid only to a person who has served for at least one year, and shall be calculated by the average wage of the three immediately preceding months of his/her retirement as follows:

In cases of concluding a contract as an annual salary, it shall be 1/12 of the annual salary.

Average wages = Average Wage = Monthly Wage (Annual Wage/12) Allowance (average Wage* Number of Service Month/12) (average Wage* Number of Service Month/365) (average Wage* Number of Service Days/365) / without dispute, Gap’s Evidence Nos. 1, 2, 5, 7 (including each number; hereinafter the same shall apply), Eul’s Evidence Nos. 4 and 7, and the purport of the whole pleadings.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion (i) although the plaintiff is registered as the defendant's registered director, the plaintiff is an employee who actually provides the defendant with labor under the defendant's direction and supervision.

Shebly, even if the plaintiff is not a worker, it is interpreted that the defendant's articles of incorporation and the salary management rules pay retirement allowances to the officers.

Article 22 of the Criminal Procedure Act provides that the defendant shall pay retirement allowance of KRW 17,634,783 and delay damages to the plaintiff.

B. (i) Determination of whether the Plaintiff’s assertion of worker status constitutes an employee subject to the Labor Standards Act ought to be made according to whether the employee provided labor to the employer for the purpose of wages in substance, regardless of the form of contract. Therefore, whether the employee is a director or auditor of the company is an officer.

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