A. The court below found the Defendant guilty of the unpaid part of the retirement allowance, on the ground that the Defendant paid D retirement allowance each month by dividing it into monthly wage, is erroneous in the misapprehension of the legal principle.

B. The punishment of the lower judgment that was unfair in sentencing (one million won) is too unreasonable.

2. Determination

A. In a case where the employer and the employee agreed to pay in advance a certain amount of money as retirement allowance, along with the monthly wage or daily wage paid by the employer and the employee, the agreement is null and void in violation of Article 8 of the Act on the Guarantee of Retirement Benefits of Workers, unless it is acknowledged as an interim settlement of the retirement allowance under the main sentence of Article 8(2) of the Act on the Guarantee of Workers’ Retirement Benefits.

Meanwhile, it is reasonable from the perspective of fairness to view that the employee should return the money in the name of the retirement allowance received to the employer with unjust benefits, if it is not recognized that the payment of the paid retirement allowance is not effective even though the employer actually paid the money in the name of the retirement allowance to the employee.

However, considering the legislative intent of the retirement allowance system prescribed by the mandatory law, the above legal principle can only be applied on the premise that there is an actual retirement allowance installment agreement between an employer and an employee.

Therefore, even though the pertinent agreement entered into between an employer and an employee is merely a determination of wages, if the employer only takes the form of a retirement allowance installment agreement to evade the payment of retirement allowances, such legal doctrine cannot be applied.

In other words, there is an agreement between an employer and an employee to the effect that a separate retirement allowance is not paid at the time of retirement, including a monthly or daily retirement allowance, and it is distinguished from a wage.