2012Na24789 Collections

New Bank Co., Ltd.

Jung-gu Seoul Central District 2 120

The representative director, Seogjin-won

Daegu District Court Decision 201Na14262 Decided November 21, 2012

July 18, 2013

August 22, 2013

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to pay below shall be revoked. The defendant shall pay to the plaintiff 23,859,162 won with 5% interest per annum from March 27, 2012 to August 22, 2013, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 38,543,341 won with 20% interest per annum from the day after the delivery of the complaint of this case to the day of full payment.

1. Basic facts

A. The Plaintiff, based on an executory payment order for loans in the Daegu District Court Decision 2011j26, 201Hu2493, the Daegu District Court issued a seizure and collection order for 46,826,139 won (hereinafter “the collection order of this case”) against the Defendant Company of GamO, except for the amount prohibited from seizure under Article 246(1)4 of the Civil Execution Act, based on the executory payment order for the loans in the Daegu District Court Decision 201Hu2493, the Plaintiff issued a seizure and collection order for GamO (hereinafter “the collection order of this case”). On November 2, 2011, the collection order of this case was served on the Defendant Company.

B. On December 22, 2011, Park○-○ retired from the Defendant Company.

[Ground of recognition] The fact that there is no dispute, Gap's evidence No. 1, and the purport of whole pleading

2. Determination as to the cause of action

A. The plaintiff's assertion

Defendant Company is obligated to pay 46,826,139 won out of 8,282,79 won out of 46,282,79 out of 10,000 won and retirement allowances to the Plaintiff according to the collection order of this case, but did not pay the remainder (=41 won - 46,826,139 won - 8,282,798 won) and delay damages therefrom.

B. Determination

1) First of all, as seen earlier, the facts that ○○○ retired from the Defendant Company on December 22, 201 with respect to the portion of the wage claim are as follows. In full view of the absence of dispute between the parties or the overall purport of pleadings in the statement in subparagraph 2, the Defendant Company may recognize the fact that the Defendant Company paid each of the Plaintiff on December 16, 201 and December 201, the remainder of the wage claim excluding the amount prohibited from being prohibited from being seized, out of the wage claim 2,097,164, monthly wage of 2,097,164, monthly wage of 1,747,965, and monthly wage of 1,747,965, and December 21, 2011, since the instant collection order was issued to the Plaintiff, there is no wage claim to be paid to the Plaintiff by the Defendant Company.

2) Next, according to the health account and evidence evidence Nos. 2, the amount calculated by deducting withholding taxes, such as income tax and resident tax, from among the statutory retirement benefits of 00, is 56,593,663 won. Here, when deducting the amount equivalent to 1/2 of the prohibited amount of seizure, the Plaintiff was paid 4,437,669 won from the Defendant Company on January 10, 2012. Thus, barring any special circumstance, the Defendant is liable to pay 23,859,162 won to the Plaintiff who is the collecting authority (28,296,831 won - 4,437,69 won - 4,669 won) and damages for delay from the date following the date on which the Plaintiff seeks to pay the notice of complaint of this case to the date on which the Defendant had paid the notice of 20% of the duty to pay the notice of this case from March 28, 2012 to the date on which the Defendant had paid the notice of this case.

3. Judgment on the defendant's assertion

A. The defendant's assertion

In this regard, the defendant company set up a defined benefit plan with the consent of the employees in accordance with the Act on the Guarantee of Workers' Retirement Benefits (hereinafter referred to as the "Retirement Benefits Act") to guarantee the retirement benefits of all officers and employees of the defendant company including Park ○○○, and set aside retirement benefits to workers. For Park ○, the defendant company accumulated 47,712,326 out of 56,593,663, which was actually received after deducting income tax and resident tax from the retirement benefits, as retirement benefits to 10 companies including the new financial investment company that is a retirement pension business entity, which is a retirement pension business entity. For the following reasons, the defendant company asserted that the part of the retirement benefits of Park O (47,712,326) accumulated in the pension business entity was not obligated to pay the amount collected to the plaintiff.

(1) Article 7 of the Retirement Benefits Act provides that the right to receive a retirement pension shall not be transferred. As such, a claim, the transfer of which is prohibited pursuant to the provisions of any Act, cannot be seized, and thus, the collection order of this case concerning the part of retirement benefits accumulated to a business entity with annual salary out of the amount of retirement benefits ○○○'s retirement benefits (hereinafter referred to as

② “Attachment” entered in the instant collection order, and indication of the claim to be collected, are limited to retirement allowances, interim settlement payments, and other retirement pay, and retirement allowances and honorary retirement allowances paid as retirement payment. Since retirement pension under the Retirement Benefits Act is not stated, the part of Park○’s retirement pension does not include the claims subject to the instant collection order.

③ The Defendant Company, an employer, is obligated to pay to Park ○○, the remaining amount after deducting the retirement pension accumulated by the Defendant Company, from the retirement pension, to the retirement pension trustee. The retirement pension trustee is obligated to pay the retirement pension. As such, the instant collection order, which is made by the Defendant Company as a third obligor, does not have its effect on the portion of the above retirement pension which is obvious that the said payer is

B. Determination

1) First of all, regarding the above argument, Article 7 of the Retirement Benefit Act prohibits transfer of the right to retirement pension and does not prohibit seizure, and there is no ground to interpret that seizure is prohibited as a matter of course in the case of a claim prohibited from transfer under the law, and Article 246(1)4 of the Civil Execution Act prohibits seizure only for the amount corresponding to 1/2 of the wage, pension, salary, bonus, retirement pension, and other wage claims of similar nature, and stipulates that seizure is possible for the remainder other than the amount corresponding to 1/2 of the retirement pension and other wage claims of similar nature. In light of the above, it is reasonable to deem that a retirement pension under the law is subject to seizure. Accordingly, the defendant's above assertion that differs from this premise is without merit.

2) Next, the above argument that the retirement pension plan established by an employer with the consent of the employee under the Health Board and the Retirement Benefits Act is aimed at guaranteeing the payment of benefits to the retired workers. It is not different in nature from the retirement benefits or the retirement benefits under the above Act, which are all received by the employee upon retirement. Thus, the defendant company, as the garnishee, has sufficiently known that not only the retirement benefits, retirement allowances, retirement allowances, etc. are included in the subject claim, but also the benefits to be received when the worker retires from the defendant company (the defendant company received the collection order in this case and notified the pension company of the seizure (the retirement pension). Accordingly, according to the defendant company's argument, the defendant company received the collection order in this case and the claims to be collected include the part of the retirement benefits to be received in accordance with the finalized benefit type retirement pension system joined by the defendant company upon retirement, and it is not reasonable for the defendant company to assert that the above claim is without merit.

3) Furthermore, although there is no dispute between the parties to the aforementioned claim regarding the establishment of a defined benefit system under the Retirement Benefits Act, the defendant company established a defined benefit plan, and even if the defendant company has accumulated part of retirement benefits to its employees, the defendant company cannot be deemed to be exempted from the liability to pay retirement benefits to its employees, as the obligor of the retirement benefit claim occurred at the time of the worker's retirement, and rather, it is reasonable to view that the defendant company is ultimately liable to pay the retirement benefits to the employees. This is reasonable in Article 17(2) of the Retirement Benefits Act that provides that "the employer shall pay the total amount of the benefits that the employee is liable to pay within the scope of the reserve within 14 days from the date of occurrence of the reason for the payment of the benefits under paragraph (1) such as the employee's retirement." The defendant company is also liable to pay the retirement benefits to the trustee and the employee company under the premise that the employee company is not liable to pay the retirement benefits to the employee under the premise that the employer is not obligated to pay the employee's retirement pension management institution or the employee's order.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Among the judgment of the court of first instance, since the part against the plaintiff regarding the above recognition money is unfair with different conclusions, it shall be revoked and the defendant shall be ordered to pay the above recognition money, and the remaining appeal by the plaintiff shall be dismissed as without merit.

The presiding judge, the whole judge

Judges

Judges Jeon Jae-hwan