[2] The case holding that since the monthly payment that an employer paid to an employee under the name of "monthly settlement of retirement allowances" according to the retirement allowance settlement agreement for future work period constitutes part of ordinary wages regardless of its name, it cannot be said that an employee obtained unjust enrichment

[2] The case holding that since it is reasonable to view that the amount paid by an employer to an employee under the agreement to settle the retirement allowance corresponding to the future work period in advance is paid periodically and uniformly to an employee as "monthly settlement of retirement allowance" along with the monthly wage, and it constitutes part of ordinary wage, regardless of its name, it cannot be said that the employee obtained unjust enrichment equivalent to the amount of the monthly wage

2. The costs of appeal shall be borne by the Defendant.

The defendant shall pay to the plaintiff 7,170,860 won with 5% interest per annum from November 29, 2007 to December 17, 2007, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

In this regard, the defendant first agreed to the effect that when entering into an employment contract with the plaintiff or renewal of the employment contract, retirement allowances shall be paid in installments and included in the monthly amount of wages for the future employment period, and then paid the retirement allowances in the above manner. The above method of settlement agreement is based on the plaintiff's voluntary request or acceptance, and is valid as it constitutes an interim settlement under Article 8 of the Guarantee of Workers' Retirement Benefits Act, and therefore, there is no balance of retirement allowances to be paid to the plaintiff.

Therefore, we examine whether the above method of retirement allowance is valid as an interim settlement under the Guarantee of Workers' Retirement Benefits Act, and the period of employment subject to interim settlement under Article 8 of the same Act includes only the "large-scale period of employment" before the request for interim settlement, and it is not allowed to make interim settlement for the future period after the request for interim settlement under the premise that workers will continue to work in the future. Furthermore, as long as the labor contract exists as the right to claim retirement allowance arises after the termination of the labor contract, it is not likely that the obligation to pay retirement allowance exists, it is not effective as the payment of retirement allowance under Article 34 of the Labor Standards Act, even if the agreement is concluded to the Plaintiff as an interim settlement under the premise that the above amount of retirement allowance exceeds the above amount of retirement allowance under the premise that the above amount of retirement allowance would be paid under the premise that the above amount of retirement allowance would not be paid under the premise that the above amount of retirement allowance would be paid under the premise that the above amount of retirement allowance would be paid under the premise that the above monthly or daily settlement would be unfavorable to the Plaintiff.

Next, the defendant asserts that, if the amount paid to the plaintiff under the above settlement agreement is not recognized as legitimate retirement allowance payment, the plaintiff is ultimately entitled to gain benefits equivalent to the amount received without any legal ground by receiving monthly amount in the name of "monthly settlement of retirement allowance" from the defendant, and that the defendant has a claim for return of unjust enrichment of KRW 6,96,000 in total, the amount paid to the plaintiff, and that it is set off within the extent of equal amount with the plaintiff's claim for return of retirement allowance.

Therefore, as to whether the above claim for return of unjust enrichment is recognized to the defendant, if the money paid to the worker as compensation for work is paid periodically and uniformly, in principle, all wages belong to ordinary wages (see Supreme Court Decision 2003Da10650, Apr. 22, 2003). Thus, in light of the fact that the determination of whether it is wages under the Labor Standards Act is named as above, and the nature of the retirement allowance, separate from the mandatory provisions of the Labor Standards Act related to retirement allowances, wages and allowances that are accrued only after retirement, it is reasonable to deem that the amount that the defendant paid to the plaintiff under the above settlement agreement constitutes part of ordinary wages, regardless of the name of "monthly settled amount of retirement allowances" as the amount paid periodically and uniformly to the worker, and therefore, the plaintiff's above assertion is not reasonable.

Finally, the defendant received consolation money from the defendant at the time of retirement. This was received on the condition that the plaintiff did not raise any objection against the fact that the plaintiff received retirement allowance payment claim under the Labor Standards Act or that at least the retirement allowance was paid in the form of interim settlement. However, since the plaintiff violated the above condition by filing the lawsuit in this case, the defendant asserts that the above consolation money donation contract was cancelled and the return claim and the plaintiff's claim for retirement allowance were set off.

Therefore, we examine whether the Plaintiff received the above consolation benefits under the condition that the Plaintiff was paid in the form of interim settlement with respect to the intent to waive the right to claim the payment of retirement allowances under the Labor Standards Act. However, according to the written evidence No. 2 and the purport of the whole pleadings and arguments, it is difficult to conclude that, upon retirement of the Plaintiff, the Plaintiff was paid the above consolation benefits under the overall purport of the statement No. 2, and there is no other evidence to acknowledge that, at the time of retirement, the Plaintiff made and delivered a written oath stating that, “on July 31, 2006, the Plaintiff would have promised to comply with the following matters, and at the time of retirement, the consolation benefits would be paid for three months (6750,000 won).” 2. A written oath stating that, at the time of retirement, the Plaintiff was paid 6750,000 won from the Defendant to the Defendant, and there is no reason to deem that the above amount was paid under the same intention or condition as the Defendant alleged.

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Calculation Details of Average Wage and Retirement Allowance: (Omission)

judge last head of the (Presiding Judge) Lee-hee