Plaintiff

Korea Businessex Co., Ltd.

April 10, 2015

1. The defendant shall pay to the plaintiff 37,627,061 won with 5% interest per annum from January 1, 2009 to September 25, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff retired on December 31, 2008 when employed by the Defendant from October 200 to work.

B. Even after the retirement of the Plaintiff as above, the Defendant did not pay to the Plaintiff the sum of KRW 14,304,383 and retirement allowances of KRW 38,922,678 from October 208 to December 2008.

C. Accordingly, the Plaintiff filed a claim with the Minister of Employment and Labor for the payment of the unpaid wages and retirement allowances in accordance with the Wage Claim Guarantee Act, and received 15,600,000 won as part of the wages for the last three months and the retirement allowances for three years from the Korea Labor Welfare Corporation on December 21, 2009.

[Reasons for Recognition: Facts without dispute, Gap 1, 7 evidence, Eul 1 evidence, the purport of the whole pleadings]

2. Determination:

A. Determination on the cause of the claim

According to the above facts, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff 37,627,061 won (i.e., the sum of the wages for the last three months + 14,304,383 won in total + 38,922,678 won in substitute payment - 15,60,000 won in substitute payment) and as requested by the Plaintiff, 5% per annum under the Civil Act from January 1, 2009 to September 25, 2014, which is the delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the day of full payment (hereinafter “instant retirement pay”).

B. Judgment on the defendant's defense

1) The Defendant’s instant retirement allowance claim is a wage claim under the Labor Standards Act and subject to the three-year short-term extinctive prescription under the Labor Standards Act. Since three years have already elapsed since December 21, 2009, the Defendant had the Plaintiff paid part of the overdue wages and retirement allowances as substitute payment, the Defendant’s defense that the instant retirement allowance claim expired by prescription.

2) On the other hand, Article 10 of the Guarantee of Workers' Retirement Benefits Act provides that “The extinctive prescription period of the instant retirement allowance claim is three years, since the right to receive retirement allowances under this Act is not exercised for three years.”

In addition, the initial date of the extinctive prescription is the starting point for the calculation of the period of extinctive prescription which meets the legal effect of the extinction of the obligation, and it constitutes a specific fact that constitutes the legal requirement of the defense of extinctive prescription, and thus, it is subject to the principle of pleading. Therefore, the court shall calculate the extinctive prescription on the basis of the initial date of pleading by the parties (see, e.g., Supreme Court Decision 94Da35886, Aug. 25, 1995). As seen earlier, the fact that the plaintiff received part of the wages and retirement allowances in arrears and retirement allowances in arrears on December 21, 2009 as substitute payment is clearly stated in the record that the plaintiff filed the lawsuit in this case on August 21, 2014, which is three years after the lapse of the lawsuit in this case. Therefore, the defendant's defense is justified.

C. Judgment on the plaintiff's second defense

1) As to this, in the instant case between the Plaintiff and the Defendant, the Plaintiff re-appealed that the said extinctive prescription was suspended, since the Defendant submitted a preparatory document as of May 9, 2012 and approved the instant retirement allowance obligation against the Plaintiff, inasmuch as the Defendant approved the instant retirement allowance obligation against the Plaintiff.

2) On the other hand, “approval of an obligation” in the ground for interruption of extinctive prescription is established by presenting to the court the purport that the obligor, who is the party subject to the extinctive prescription benefit, would lose his claim due to the completion of the extinctive prescription period, or his/her agent, knows the other party’s right or his/her obligation. The method of indication is not required in any form, but does not explicitly ask an implied case (see Supreme Court Decision 2012Da45566, Oct. 25, 2012). In the instant case between the Plaintiff and the Defendant, the court of this case, stating that “the Defendant has not yet paid part of the Plaintiff’s wages and retirement allowances,” the Defendant submitted a written report as of May 9, 2012, stating that “the fact that the said written report was delivered to the Plaintiff around that time, or that it was recognized by considering the overall purport of oral arguments as to the evidence evidence No. 8.

Therefore, the claim for retirement allowance of this case was suspended due to the defendant's approval of debt around May 9, 2012, on which the above legal brief was delivered. Thus, the plaintiff's counterclaim pointing this out is justified, and the defendant's defense is therefore groundless.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.

Judges Kim So-young