The court below erred by misunderstanding facts or by misapprehending legal principles for the following reasons, which affected the conclusion of the judgment.

A. Since the Defendant entered into an agreement with the instant workers on the installment payment of retirement allowances and paid retirement allowances in advance, in cases where the agreement on the installment payment of retirement allowances between the Defendant and the said workers becomes invalid, the employees are obligated to return the retirement allowances received from the Defendant as unjust enrichment.

B. Therefore, the court below calculated the average wage, excluding the retirement allowance paid in installments, which was received by the employee for three months before his retirement, with respect to the calculation of the retirement allowance of the employee of the instant case, and calculated the average wage including the retirement allowance paid in installments, even though it is necessary to recognize the amount of the unpaid retirement allowance

C. In addition, as long as the Defendant expressed his intent to offset the employee’s obligation to return unjust enrichment against the employee who is a set-off claim with automatic claim, the amount equivalent to 1/2 of the retirement allowance, which is set-off scope, retroactively ceases to exist at the time of his retirement. As such, as regards the amount equivalent to 1/2 of the retirement allowance, the Defendant cannot be deemed to have not paid the retirement allowance within 14 days from the date on which the cause for payment of the retirement allowance occurred.

2. Determination on the grounds for appeal

A. Although the amount of money in the name of a retirement allowance is paid separately from the monthly wage or daily wage under an agreement to divide a retirement allowance during the continuance of a labor relationship, if the agreement to divide a retirement allowance is null and void and thus there is no validity as a payment of a retirement allowance, the amount in the name of a retirement allowance already paid under the above agreement shall not be deemed to constitute “wages paid for the payment of a retirement allowance.” Therefore, it is reasonable from the perspective of fairness to view that an employer should return to the employer the money in the name of a retirement allowance received by an employee as unjust enrichment, while an employee suffered losses equivalent to the same amount by paying the amount in the name of a retirement allowance to an employee without any legal ground, on the other hand, while an employee received the same amount in the name of a retirement allowance.

B. However, considering the legislative purport of the retirement allowance system, where an employer and an employee agreed to divide the retirement allowance with the employer to evade the payment of the retirement allowance even though the substance of the agreement is merely the determination of the amount of the retirement allowance, the above legal principle cannot be applied. In other words, there is an agreement between the employer and an employee that includes the retirement allowance in a monthly pay or daily pay and does not pay a separate retirement allowance at the time of retirement, and in light of the amount of wages, etc. excluding the above nominal amount of the retirement allowance, the above legal principle is applicable only to the case where the employer and the employee agreed to pay a certain amount of money as an additional retirement allowance separately from the wage in light of the previous labor contract or the Labor Standards Act, etc. (see, e.g., Supreme Court Decisions 2008Da9150, May 27, 2010; 2010Da912710, Oct. 11, 2012; 2017Da127167, supra.

① A written employment contract made between the Defendant and the instant workers appears to have been unilaterally made by the Defendant and the instant workers by presenting to the employees a written contract in which the Defendant, who was re-subcontracted from F, was the direct employees of F Co., Ltd., the Defendant: (a) as if the Defendant were to have employed the employees directly (e.g., to avoid the provision of the ordering office which does not permit sub-subcontracts because of fear of the aggravation of service quality); and (b) as if having known the monthly wage, the amount was written in this contract; and (c) the Defendant’s signing. In that process, there was no consultation or notification on the detailed details of monthly wage or how the total annual salary was calculated to the employees; and (d) there was no preparation of an employment contract between C Co., Ltd. and the employees operated by

② The instant workers are those who maintain and repair Internet optical cable facilities, and there was no separate statement of salary during the period of service. Moreover, it is difficult to readily conclude that the payment was made by clearly distinguishing the part paid as retirement allowance from the part not, in the wife where wage is paid in monthly wage.

③ Even according to the statement of the “ Incheon’s Benefits” submitted by the Defendant in April 2015, the wage items for the instant workers are composed only of “basic pay, food subsidies, paid pay allowances, overtime allowances, holiday allowances, holiday allowances, annual leave allowances, annual leave allowances, self-driving support (D20,000 won among the employees), and there is no description of the items or amount of “1 to April 4th of 2015” for K and L submitted by the Defendant, and only include “basic pay, food expenses, and allowances” for workers (Evidence No. 126, 127 pages).

④ On the other hand, when the instant case was at issue, the Defendant calculated the retirement allowance under the pretext of the payment to the instant workers, which was alleged to have been paid to each of the instant workers, and started to set off the amount under the pretext of the retirement allowance by counting it from the annual salary stated in the employment contract between F and workers, a stock company F and its employees, which was formally drafted as described in the above paragraph, and by uniformly setting the amount under the pretext of the retirement allowance. However, unlike the Defendant’s assertion that the amount equivalent to 12/13 out of the annual salary of each worker as the basic salary and the amount equivalent to 1/13 as the retirement allowance, the amount actually paid to the employees seems to be different from the amount calculated in the above manner.

⑤ Ultimately, despite the fact that the instant agreement on the division of retirement allowances between the employee and the Defendant stipulates the wage, there is considerable room to view that the agreement on the division of retirement allowances only takes the form of the agreement on the division of retirement allowances to avoid the payment of retirement allowances, and it is included in the amount that the employee

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since there is no reason to appeal.

Judges, Senior Jins

Judges Song Jae-ap