근로자퇴직급여보장법위반
The judgment below
Part other than the costs of lawsuit shall be reversed.
A defendant shall be punished by a fine of KRW 4,000,000.
1. Summary of grounds for appeal;
A. The Defendant: (a) concluded a contract with E, F, and annual salary with the Defendant to pay the amount of retirement pay including the amount of retirement pay received each month; (b) although there was no intention to pay the amount of retirement pay as a matter of course because he knew that the amount of retirement pay should be included in the annual salary and that the amount of retirement pay should not be paid separately, the lower court convicted the Defendant of the facts charged in this case; (c) the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment
B. The punishment sentenced by the lower court (an amount of five million won) is too unreasonable.
2. Determination
A. Articles 4 and 8(1) of the Act on the Guarantee of Retirement Benefits of Workers for the determination of mistake as to the assertion of facts stipulate that an employer shall establish one or more of the retirement benefit scheme to pay the retired employee’s benefits, and that an employer who intends to establish the retirement allowance scheme shall establish a system to pay the retired employee with at least 30 days’ average wages for the consecutive one year of his/her continuous employment as retirement allowances. However, there is no room for a duty of payment of retirement allowances in principle during the duration of his/her employment contract as a result of the occurrence of the period of his/her continuous employment as a requirement for termination of his/her employment relationship. Thus, there is no room for a duty of payment of retirement allowances in principle during the duration
Even if so, it is not effective as a retirement allowance under Article 8(1) of the Act on the Guarantee of Workers’ Retirement Benefits (see, e.g., Supreme Court Decisions 2002Do2211, Jul. 12, 2002; 2007Do3725, Nov. 16, 2007). The Defendant asserted as the grounds for appeal in the lower court, and the lower court made a decision on the lower part of “a summary of evidence” of the judgment.