A. The plaintiff's main claim is dismissed.

B. The Defendant shall pay to the Plaintiff 159,417,732 won with 6% interest per annum from May, 2012 to December 17, 2015, and 20% interest per annum from the next day to the day of full payment.

C. The plaintiff's remaining conjunctive claims are dismissed.

2. Of the total litigation costs, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1-b. above may be provisionally executed.

A. The primary claim: from April 21, 2008, the defendant paid to the plaintiff 284,769,938 won and the amount calculated by 5% per annum from April 21, 2008 until the delivery date of a copy of the application for modification of the claim and the cause of the claim in this case, and from the next day to the day of complete payment, 15% per annum (the plaintiff extended the primary claim in the trial. However, the plaintiff reduced from 20% per annum to 15% per annum in relation to delay damages).

B. Preliminary claim: the Defendant paid to the Plaintiff the amount of KRW 247,293,847 and the amount of KRW 20% per annum from May 6, 2012 to the date of full payment (the Plaintiff shall pay to the Plaintiff KRW 247,293,848, which is the previous claim amount, at the trial, the amount of KRW 247,293,847, and the damages for delay shall be extended as above, thereby expanding the damages for delay, thereby expanding the claim for the preliminary claim).

2. Purport of appeal

A. The plaintiff

1) The primary purport of appeal is revoked by the judgment of the first instance. Upon the primary claim, the defendant shall pay to the plaintiff 110,000,000 won with 5% per annum from April 21, 2008 until the delivery date of the copy of the application for modification of the purport of the claim and the cause of the claim in this case, and 20% per annum from the next day to the day of full payment.

2) Preliminary purport of appeal: The preliminary claim in the judgment of the first instance is modified as follows.

I propose a judgment, such as the preliminary claim.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

A. From April 20, 2005, the Plaintiff has been working as a so-called salary class, where the Plaintiff received benefits from the Defendant’s Department C’s members.

B. On May 5, 2007, around July 2007, the Plaintiff and the Defendant drafted a partnership agreement with the content that they jointly operate the CJ and distribute profits (hereinafter “instant partnership agreement”). The main contents are as follows.

Article 1 (Purpose) The plaintiff and the defendant operate the medical business in the Can and the business place from April 20, 207 to the termination of this contract shall give priority to improving the management efficiency, patient treatment and hospital development.Article 2 (Duty of Contribution) The defendant shall invest the existing medical institution, medical institution, place of business, etc., and the plaintiff shall invest the operating fund of KRW 50 million.The plaintiff and the defendant, as a good manager, shall jointly manage the Can and manage the property, and shall faithfully perform all of their obligations.Article 4 (Distribution of Profits) The plaintiff and the defendant shall distribute the annual profit amount from April 20, 207 to April 20: the defendant 70%.Article 8 (Recovery due to Termination or Termination of the Contract)

C. On April 21, 2012, the Plaintiff retired from the Korea National Assembly member of the Korea National Assembly (hereinafter “Korea National Assembly member”) and independently changed the members of the Korea National Assembly.

【Ground for recognition】 The fact that there has been no dispute, entry of Gap Nos. 1 and 6, the purport of the whole pleadings

2. Judgment as to the main claim

A. The parties' assertion

1) The plaintiff's assertion

The Defendant did not distribute to the Plaintiff 30% of the profit accrued from the operation of the Canbu in accordance with the agreement stipulated in the instant business agreement, but did not appropriately distribute the profit distribution period from May 2007 to April 2008. However, considering only the profit distribution period of the year from May 2007 to April 2008, the Defendant’s non-distribution profit for the said one-year period: (i) [372,836,50 won [372,836,50 won [the annual profit distribution amount of the Plaintiff (the annual profit distribution amount of KRW 2,717,176,180 - KRW 1,474,844)]; and (ii) X30% of the annual profit distribution amount of KRW 236,00,00];

(2) Since the Defendant’s personal expenditure for the above one year was an amount equivalent to the Plaintiff’s profit distribution rate of KRW 147,933,438 ( KRW 493,111,460 x 30%) out of the total amount of profit distribution for the five years from May 2007 to April 2012, the Defendant sought partial payment of the amount of profit distribution for the five years from May 2007 to April 2008, 28, 284,769,938 won ( KRW 136,836,500 + KRW 147,93,4383,438) and delayed payment thereof.

2) The defendant's assertion

The Plaintiff and the Defendant, without the intent to jointly operate the CB and distribute the profits therefrom, only made the appearance that the Defendant would engage in the business of operating the CB with the intent of having the headquarters and the Defendant jointly operate the CB, and made the instant business partnership agreement with the intent to submit it to the tax office. Therefore, the instant business partnership agreement is invalid as it constitutes a false declaration of conspiracy. Therefore, the Defendant did not have a duty to distribute profits to the Plaintiff.

B. Determination

1) As long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the declaration of intent in accordance with the content of the document unless there is any reflective proof, and shall not reject it without any reasonable explanation. However, even if a disposal document is a disposal document, if there is an express or implied agreement different from the content of the document, a fact different from the content of the statement may be recognized. In interpreting a legal act of the originator, the court may determine it by free evaluation of evidence insofar as it does not violate the empirical and logical rules (see, e.g., Supreme Court Decision 2005Da34643, Apr. 13, 2006).

2) In light of the language and text stated in the instant trade agreement and the fact that the original and the Defendant received authentication as to the said trade agreement, there is a doubt that the original and the Defendant did not intend to work as a member of the C agenda from May 2007 as the Plaintiff’s assertion.

However, in light of the following circumstances, the evidence Nos. 6, Eul evidence Nos. 1, 2, 3, 6, and 7 (including virtual numbers) and the testimony of witness E of the court of first instance, it is reasonable to deem the agreement of this case as null and void as a false competitive agreement merely because it is a formal document prepared by the defendant with the consent of the plaintiff for the purpose of gaining the tax imposed on the plaintiff for the purpose of generating the tax imposed by the defendant as a member of C, and the descriptions of the evidence Nos. 3, 5, 7, and 8 (including virtual numbers) alone do not interfere with the above judgment.

① Prior to the Plaintiff’s entry into C bills and thereafter, E, who is in charge of taxation and accounting of members of C bills, stated to the effect that “this case’s agreement (Evidence A) was prepared for the purpose of tax saving by the recommendation of the accounting office entrusted with the tax treatment of members of C bills, and the Plaintiff also consented to the preparation of the agreement with the knowledge of such circumstances.”

② The Plaintiff did not perform the duty to invest KRW 50 million as stipulated in Article 2 of the instant business contract. Rather, on May 7, 2007, the said money was received from the Defendant on May 7, 2007, and was returned to the Defendant on May 10, 2007, after he received a deposit account under the Plaintiff’s name from the Defendant, and then returned the money again on May 10, 2007. This is a circumstance supporting E’s statement that there was a need for writing the appearance of the business investment for submission at the tax office (in this regard, the Plaintiff was liable to pay the rent of KRW 50 million on behalf of the said 50 million, and the Plaintiff claimed that the Plaintiff was paid KRW 2 million each month from the Defendant to pay the rent for the said vehicle, and the Plaintiff’s assertion that the said amount was ultimately difficult to be considered as the implementation of the instant business agreement, since it did not have been borne by the Plaintiff as its own contribution.)

③ The Defendant has been operating a member of the C bill independently prior to the preparation of the instant business contract, and does not seem to have experienced particular difficulties in its operation.

④ Under the instant trade agreement, the Plaintiff’s investment is KRW 50 million and it is difficult to view it as an adequate amount as an investment in 30% of the Plaintiff’s share in comparison with the tangible and intangible value of the Plaintiff’s share accumulated by the Defendant (if the amount of KRW 50 million is equivalent to KRW 30%, then the previous asset value of KRW 117 million in excess of the remainder of KRW 70% shall not be deemed to have been exceeded the amount of KRW 10,000,000,000 in the entire process of pleadings).

In addition, there is insufficient evidence to support that medical knowledge and skills possessed by the Plaintiff, like the Plaintiff’s assertion, have been outstanding enough to offset the shortage of the Plaintiff’s investment amount, and even if so, the Defendant would have recommended the Plaintiff to continue to work together while proposing higher benefits. Therefore, the Plaintiff would not have to have been required to have operated the same business even with the substantial concession of the Plaintiff’s right to the property value of the members of the CW as above.

⑤ 원고는, '피고가 2007년 5월부터 2008년 4월까지 최초 1년간의 동업기간 직후, 위 기간 동안 원고의 월급으로 분배한 금액 이외에 원고에게 더 지급할 이익금이 없다고 하여, C안과의원의 사무장으로부터 관련 영업 자료를 입수하여 검토해 보았더니 피고가 매출액을 누락하고, 피고 개인의 지출을 동업 지출로 계상하는 등의 문제점이 발견되어 피고에게 항의하였으나, 피고가 선·후배 관계를 거론하면서 원고를 윽박지르는 바람에 2012년 4월분까지의 정당한 이익분배 청구권을 행사하지 못하였던 것이다'라는 취지로 주장하나, 원고의 위와 같은 주장 자체로 정상적인 동업자가 가장 기본적인 자신의 권리인 이익분배 청구권의 행사와 관련하여 취할 법한 일반적인 태도와 부합하지 아니할 뿐만 아니라, 원고가 무려 4년 동안이나 자신의 권리를 전혀 행사하지 아니하고 방기하였다는 점에서도 납득하기 어렵다.

④ The Defendant reported the Plaintiff to his partner from May 7, 2007, which was from the time of commencement of the partnership business under the instant partnership business agreement, to his/her partner, and reported his/her withdrawal on November 1, 2009 to the National Health Insurance Corporation on May 1, 2007, under the premise that the Plaintiff was a partner, but the Plaintiff reported the fact that he/she was a regional household owner on May 1, 2007, but reported the change to the employee insured as the employee insured as of April 22, 2008. However, on April 21, 2012, the Plaintiff did not have any objection or objection to such measures against the Defendant until he/she retired from the Ministry of Strategy and Finance.

As to this, the Plaintiff asserted to the effect that the Defendant was unaware of the fact that the report was made on the change, but the documents in the Plaintiff’s name confirming the change in the partnership were deemed to have been required to make a report on the change in the partnership. As such, it is only a circumstance supporting the Defendant’s assertion to the effect that the Plaintiff was irrelevant to the maintenance of the formal partnership relationship as the Plaintiff’s assertion that the Plaintiff was not aware of the fact that the documents were prepared.

7. In the instant partnership agreement, if the agreement is terminated or terminated, the Defendant does not have the obligation to return the amount of KRW 50 million to the Plaintiff (Article 8), and the Plaintiff is not able to exercise the right to medical instruments, etc. already provided by the Defendant or newly acquired after the date of the agreement (Article 11(1) and (2)). As seen earlier, performing a joint business and distributing the profits and losses, and the remaining assets, according to the ratio of shares, are considerably different from the general relationship of the partnership.

3) Therefore, the Plaintiff’s primary argument premised on the validity of the instant partnership agreement is without merit without further examining the remainder.

3. Judgment on the conjunctive claim

A. The parties' assertion

1) The plaintiff's assertion

If the relationship between the plaintiff and the defendant is not constituted, the plaintiff is an employee employed by the defendant, and the defendant is obligated to pay retirement allowances to the plaintiff.

2) The defendant's assertion

① The Plaintiff is merely a special status in which the Defendant’s employee would receive remuneration based on the performance, rather than the Defendant’s employee, and is not eligible to receive a retirement allowance at the beginning. ② The Plaintiff’s obligation to pay a retirement allowance is exempted on the ground that there was an implied agreement between the Plaintiff and the Defendant that the Plaintiff would not claim a retirement allowance instead of the Defendant’s payment of the wage and salary income tax, resident tax, health insurance premium, long-term care insurance premium, national pension premium, employment insurance premium, etc. (hereinafter “income tax, etc.”). ③ The Plaintiff’s demand for a retirement allowance against the Defendant violates the good faith principle or the principle of equity, and thus, the Plaintiff

B. Determination

1) Judgment on the defendant's assertion

A) Whether the plaintiff is an employee or not

Article 2(1)1 of the Labor Standards Act provides, regardless of the type of occupation, a person who provides labor at a business or workplace for the purpose of wages. Determination of whether a contract constitutes a worker ought to be based on whether a worker provided labor in a subordinate relationship with an employer for the purpose of wages in substance, regardless of whether the contract form is an employment contract under the Civil Act or a contract for work. Determination of whether such subordinate relationship exists should be made by comprehensively taking into account the following: (a) whether the content of work is determined by the employer; (b) whether the employer is subject to specific direction and supervision by the employer; (c) whether the working hours and place are designated by the employer; (d) whether the worker is subject to placement of the work; (e) whether the worker owns equipment; (e) whether the worker has the characteristic of remuneration; (e) whether there is a basic pay or fixed wage in terms of the nature of remuneration; (e) whether or not the continuous provision of labor and the degree and degree of exclusive employment to the employer; and (e) whether the worker status has been recognized by other statutes regarding social security systems, and economic conditions of both parties (see, supra.

The following circumstances revealed by the facts acknowledged as above and each of the aforementioned evidence, namely, ① the Plaintiff’s life in a salary room from around April 2005, immediately after the completion of his service as a military doctor, ② the Plaintiff appears to have been maintained without changing the Plaintiff’s work environment before and after the completion of the work as a military doctor; ③ the Plaintiff’s payment of a certain amount of wages every month without changing the patient’s medical treatment performance; ④ the Plaintiff’s payment of wages on the basis of the Defendant’s personal and physical equipment; ⑤ the Defendant’s payment of labor income tax to the Plaintiff, ⑤ the Defendant’s payment of national pension, health insurance, long-term care insurance, and employment insurance benefits, ⑤ the Plaintiff could not have a third party act on behalf of the Plaintiff; ② there was no possibility of providing labor to other medical institutions; ② the Plaintiff appears to have not been subject to specific direction and supervision from the Defendant in the course of performing his duties, or this appears to have been based on the Plaintiff’s personal characteristics, and thus, it is reasonable to view that the Plaintiff’s labor relationship with the Defendant’s subordinate position.

Therefore, the first defendant's assertion on a different premise is without merit.

B) Whether there is an agreement not to request retirement pay

It is insufficient to recognize that there was an implied agreement between the Plaintiff and the Defendant on the written testimony of F of the witness F of the trial at the trial, and there is no other evidence to acknowledge otherwise.

Therefore, this part of the defendant's assertion is without merit.

C) Whether the good faith principle is violated

The circumstance presented by the defendant alone cannot be deemed as going against the good faith principle, and there is no other evidence to acknowledge it. Therefore, the defendant's assertion on this part is without merit.

The Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 cited by the Defendant was a matter concerning the scope of recognition of ordinary wages, and thus it is inappropriate to invoke it as it differs from the instant case.

(ii) the calculation of retirement allowances;

A) As seen earlier, in full view of the Plaintiff’s work and retirement from the date of April 20, 2005 to April 21, 2012, as seen earlier, the Plaintiff’s benefits received from January 21, 2012 to April 20, 2012 for three months prior to the retirement by the Plaintiff’s payment of wages from January 21, 2012 to April 20, 2012 is recognized.

B) Meanwhile, in relation to the Plaintiff’s wage, the Plaintiff asserts that the amount of KRW 23 million was actually received after deducting the earned income tax, etc. from the amount of pre-paid wage, and thus, the Plaintiff’s wage for the calculation of retirement pay is the amount of pre-paid wage including the earned income tax, etc., and thus, it would be KRW 35,678,330 per month if calculated.

However, the purport of the first instance court’s order that the Defendant guaranteed the Plaintiff the actual amount of KRW 23 million is that the Plaintiff’s three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three-three...

C) Therefore, as to the Plaintiff’s retirement allowance under Article 34 of the Labor Standards Act and Article 8(1) of the Guarantee of Workers’ Retirement Benefits Act, the Defendant claimed 159,417,732 won [69,00,000 won [69,000 won (23,00,000 won) / 91 days] X 30 days X (2,558/365 days), and less than 14 days after the date of the Plaintiff’s retirement as stipulated in Article 36 of the Labor Standards Act] as to the existence and scope of the Defendant’s obligation to pay retirement allowances, the Defendant did not claim 6% (2,00,000 won) of the total amount of wages for the three months prior to his retirement, and the Defendant did not claim 30% of the total amount of retirement allowances under Article 37(2) of the Labor Standards Act and Article 18(3) of the Enforcement Decree of the Labor Standards Act for the first instance court’s exclusion of the Plaintiff’s claim for retirement allowance payment.

D) As to this, the Defendant asserts that the portion of wage and salary income tax, etc. borne by the Defendant on behalf of the Plaintiff is set up under the agreement under which the employer bears tax and public charges on the terms of the retirement allowance site pay, and the agreement is null and void in violation of the Labor Standards Act, so long as the Plaintiff acquired without any legal cause, the Plaintiff is obligated to return the total amount of wage and salary tax, etc. paid by the Defendant from 2007 to 2011, and the Plaintiff is obligated to return the above unjust enrichment refund claim to the Defendant

Therefore, no evidence exists to deem that the Defendant paid the wage and salary tax, etc. on the condition of the retirement allowance site by the business owner under an agreement between the Plaintiff and the Plaintiff. Rather, the Defendant agreed to pay the wage and salary tax, etc. originally to be paid by the Plaintiff on behalf of the Defendant in order to guarantee the level of wage to be actually received by the Plaintiff while setting the monthly wage between the Plaintiff and the Plaintiff. As seen earlier, the Defendant’s payment of the Plaintiff’s wage and salary tax on behalf of the Plaintiff pursuant to an agreement between the Plaintiff and the Plaintiff, and thus, the Plaintiff

Therefore, the defendant's defense of offsetting also has no reason to consider the remainder.

4. Conclusion

Therefore, the plaintiff's preliminary claim against the defendant shall be accepted within the above scope of recognition, and the plaintiff's primary and other conjunctive claims against the defendant shall be dismissed for lack of reasonable grounds. The judgment of the court of first instance on the original claim shall be dismissed for some different conclusions, and since the plaintiff's claim has been expanded in the trial, the judgment of the court of first instance, including the claim expanded in the trial, shall be modified as above. It is so decided as per Disposition by the court of first instance.

Judges Choi hee-young

Judges Eknbs