Law Firm Sejong, Counsel for the plaintiff-appellant

Attorney Jeon Young-young et al.

Changwon Law, Attorney Chang-won et al.

[Defendant-Appellant]

The plaintiff's appeal as to the main claim is dismissed.

1. As to the main claim

The lower court, based on its reasoning, dismissed the Plaintiff’s primary claim seeking an amount of profit distribution during the period of the business, on the premise of the business agreement, on the ground that the business agreement on the instant hospital, prepared between the Plaintiff and the Defendant, constitutes a false conspiracy and invalid, and that there is a lack of evidence to acknowledge the business agreement.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the probative value of a disposal document, contrary to what is alleged in the grounds of appeal.

2. As to the conjunctive claim

A. Ground of appeal No. 2

The Plaintiff asserted that the monthly wage for the calculation of the Plaintiff’s retirement pay should be KRW 23 million, including the wage and salary tax, and that the monthly wage should be KRW 35,678,330,00,000,00,000, including the monthly wage for the calculation of the Plaintiff’s retirement pay.

The court below rejected the above assertion on the grounds that the purport of the agreement between the plaintiff and the defendant on the wage was that the plaintiff's wage was paid to the plaintiff as well as the amount of 23 million won received by the plaintiff, and the wage and salary tax imposed on him was paid by the defendant on his behalf, based on the circumstances in its holding.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the interpretation of expression of intent as to average wages for the calculation of retirement allowances, contrary to what is alleged in the grounds of appeal

B. Ground of appeal No. 3

1) The total wage, which forms the basis for calculating the average wage, is all the money and valuables that an employer pays to an employee as compensation for work, including all the money and valuables, in which the employer continues to and regularly pays to an employee and the obligation to pay is crossed out by the employer (see, e.g., Supreme Court Decision 2011Da23149, Jul. 14, 2011

2) According to the reasoning of the lower judgment and the record, the Plaintiff and the Defendant’s hospital entered into a labor contract under which the Defendant would pay the monthly amount of wage and salary income tax, etc. imposed on him/her, while serving as a doctor, and the Plaintiff received KRW 23 million monthly wage from January 21, 2012 to April 20, 2012 for three months before his/her retirement, and the Defendant paid the monthly amount of KRW 17,50,870 on behalf of the Defendant for the period from January 1, 2012 to April 21, 2012.

Examining the above facts in light of the legal principles as seen earlier, since the Defendant decided to pay on behalf of the Plaintiff for the amount of actual receipt each month, the amount equivalent to the pertinent earned income tax, etc. that the Defendant decided to pay on behalf of the Plaintiff, regardless of its title, shall be included in the total wage as the basis for calculating the average wage. Therefore, when calculating the retirement allowance to be paid to the Plaintiff, the amount of the earned income tax, etc. borne by the Defendant for three (3) months prior to the Plaintiff’

Nevertheless, in calculating the Plaintiff’s retirement allowance, the lower court calculated the average wage on the basis of the Plaintiff’s actual monthly received amount of KRW 23 million, instead of including wage and salary tax, etc. for the period of three months prior to the Plaintiff’s retirement as the amount of the Plaintiff’s retirement. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of wages to be included in the average wage, thereby adversely affecting the conclusion of the judgment. The allegation

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal against the Plaintiff’s primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Cho Jae-chul

Justices Lee Dong-won

Justices Park Gyeong-tae, Counsel for the defendant