205Ma34133 (Mains) Confirmation of the existence of the obligation

205 Ghana 36719 (Counterclaim retirement pay)

A

B

September 29, 2006

November 3, 2006

1. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 14,01,910 won with 5% interest per annum from October 15, 2005 to May 4, 2006, and 20% interest per annum from May 5, 2006 to the date of full payment.

2. The Plaintiff (Counterclaim Defendant)’s principal claim and the remainder of the Defendant (Counterclaim Plaintiff) claim are dismissed, respectively.

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) by combining the principal lawsuit and counterclaims.

4. Paragraph 1 can be provisionally executed.

In the principal lawsuit: The defendant (the plaintiff, hereinafter referred to as "the defendant") shall pay to the plaintiff 37,105,675 won with interest of 20% per annum from August 29, 2006 to the day of full payment.

Counterclaim: The defendant shall pay to the plaintiff 14,01,910 won and interest thereon at the rate of 20% per annum from October 15, 2005 to the day of full payment.

1. Basic facts

A. The plaintiff is the representative of the Da Hospital located in the Jeonsan-gu Seoul Metropolitan City, and the defendant works for the director in charge of home medicine from March 4, 2002 at the above hospital from March 4, 2002, and is a doctor retired on September 30, 2005.

B. The Plaintiff and the Defendant set the Defendant’s monthly salary of KRW 4,00,000, while the Plaintiff did not pay a separate retirement allowance at the time of retirement (hereinafter “instant retirement allowance agreement”) instead of having the Defendant’s monthly salary of KRW 4,000,000, and the Plaintiff agreed to pay the Defendant’s income tax and resident tax on behalf of the Plaintiff.

C. The Defendant’s monthly salary of KRW 4,00,000 is the average wage of KRW 14,01,910 for retirement allowances calculated in accordance with the Labor Standards Act.

[Ground of recognition] Facts without dispute, Gap evidence 2-1 to 4, Eul evidence 5-1 to 5, Eul evidence 2-10 to 12, 14-2, and the whole purport of pleading

2. The assertion and judgment

A. The parties' assertion

As the cause of the instant claim, the Plaintiff paid the Defendant a total of KRW 4,00,000 in addition to the amount of KRW 1,000,000 on condition that the monthly salary of KRW 3,000 was settled in advance, and the instant retirement allowance agreement is valid. Even if the agreement on the advance payment of KRW 3,00,000 is null and void, the excess amount of KRW 3,000,000 should not be included in the average wage, and thus, the amount of the retirement allowance obligated to be paid to the Plaintiff is KRW 10,508,933. The Defendant unjust enrichment of KRW 41,00,000 in total and KRW 6,614,60,000 in total, including the income tax paid by the Plaintiff on behalf of the Plaintiff, and thus, the Plaintiff did not pay retirement allowance to the Defendant when offsetting the Defendant’s claim for return of unjust enrichment against the Defendant’s automatic claim, and rather, the Defendant should return KRW 37,105,75.

As to this, the defendant asserts that even if there exists an advance payment agreement of retirement pay of this case, it is in violation of the Labor Standards Act, and thus null and void. The plaintiff is obliged to pay 14,01,910 won of retirement allowance calculated by calculating the amount of 4,00,000 won as average wage to the defendant.

B. Validity of the agreement on the advance payment of retirement pay of this case

Article 34(1) of the Labor Standards Act provides that a retirement allowance shall be provided to a retired employee, and as a matter of principle, there is no room for the obligation to pay a retirement allowance to the retired employee during the existence of a labor contract as a result of the occurrence of a labor contract, such as retirement allowance. Thus, even if an employer agreed to pay a certain amount of money on a monthly wage paid between the employer and the employee as a retirement allowance under the name of the retirement allowance, it is not effective as a retirement allowance payment under Article 34(1) of the Labor Standards Act, and an agreement to waive a claim for a retirement allowance occurred during the final retirement is invalid as it violates Article 34(1) of the Labor Standards Act (see, e.g., Supreme Court Decisions 2002Do2211, Jul. 12, 2002; 200Da27671, Jul. 26, 200

Therefore, in this case, the pre-payment agreement between the plaintiff and the defendant is also null and void.

C. Determination on the main claim

First, with respect to the Plaintiff’s assertion on the excess of KRW 3,00,000, as seen earlier, since the instant agreement on the advance payment of retirement allowances is null and void, even if some of the Defendant’s monthly salary of KRW 4,00,000 included in the Defendant’s monthly wage of KRW 4,000,000, it is not effective as retirement allowance payment under the Labor Standards Act, and since the Plaintiff’s employer’s payment of labor constitutes an amount of money and valuables to the Defendant, who is an employee, as the subject of his labor, the aforementioned excess of KRW 3,00,000 is not included in average wage, or the Defendant’s unjust enrichment of KRW 41,00,000 in excess of KRW 3,00,000, the Plaintiff’s assertion on this part is without merit (it is without merit in specifying the amount of money paid under the pre-payment of KRW 4,000,000, as well as in the case where the Plaintiff and the Defendant agreed not to pay the amount under the pre-payment as evidence.

Next, with respect to the Plaintiff’s assertion on the portion of payment such as income tax, etc., the Plaintiff’s assertion on this part is premised on the fact that, in a case where the agreement on the advance payment of retirement pay in this case and the advance payment of income tax are in a quid pro quo relationship, or where the agreement on the advance payment of retirement pay in this case is null and void, the agreement on the advance payment of income

If it is deemed that the Defendant should return the money included in the monthly salary as the pre-payment of retirement allowance or the income tax paid by the Plaintiff, the employer, as alleged by the Plaintiff, to the unjust enrichment, the purport of the legislation of the retirement allowance system under the Labor Standards Act, which provides that the employee who entered into an agreement to pre-payment of retirement allowance in violation of the Labor Standards Act is unable to file a claim for retirement allowance as in this case, and it is no different from recognizing the validity of the agreement to pre-payment of retirement allowance, thereby making it possible to prepare a system that allows retirement allowances to be paid to the retired employee (see Supreme Court Decision 2006Da34469, Oct. 26, 200).

Therefore, on a different premise, the plaintiff's main claim is without merit.The judgment on the counterclaim claim is without merit.

According to the above facts of recognition, the plaintiff is obligated to pay to the defendant 14,01,910 won and the damages for delay at each rate of 20% per annum under the Civil Act from October 15, 2005 to May 4, 2006, when the application for purport of the counterclaim and change of cause was served on the plaintiff from October 14, 2005, which was 14 days after the defendant's retirement date to September 30, 2005, to the day when the application for change of cause was served on the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the defendant's claim of this case is justified within the above scope of recognition, the remaining counterclaim is dismissed. It is so decided as per Disposition.

Judges Choi Ho-ho