209Gahap16801 Confirmation, etc. of the existence of an obligation

Medical Corporations O medical Foundation

Kim 00

August 12, 2010

1. The plaintiff's claim is dismissed.

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

The defendant pays 100, 628, 440 won to the plaintiff.

1. Basic facts

A. The Defendant, as a medical specialist, worked as the chief of 00 hospital (hereinafter referred to as “Plaintiff hospital”) operated by the Plaintiff from May 2, 2005 to April 30, 2009, as a medical specialist, for the purpose of serving as the chief of 3 division in the 00 hospital operated by the Plaintiff.

B. Won, the defendant set the defendant's monthly salary as the amount actually received by the defendant, and the defendant did not withhold wage and salary tax, resident tax and pension premium, health insurance premium, and employment insurance fee (hereinafter "labor income tax, etc.") to be withheld from the defendant's monthly salary, and the plaintiff agreed to pay it on behalf of the plaintiff (hereinafter "the substitute payment agreement of this case").

C. Accordingly, the Plaintiff paid 100, 628, and 440 won in total, including wage and salary income tax to be withheld from the Defendant’s monthly salary during the Defendant’s tenure of office.

D. The Defendant filed a retirement claim with the Plaintiff on April 28, 2009, which was around the retirement time, and the Plaintiff did not pay the retirement allowance. Accordingly, the Defendant filed a petition with the 00 branch office of the 00 branch office of the Plaintiff hospital for the reason that the Plaintiff did not pay the retirement allowance on May 19, 2009. The Plaintiff paid the retirement payment to the Defendant during the instant lawsuit.

[Ground of Recognition: Facts without dispute, Gap evidence 1, 2, Eul evidence 1 through 4 (including each number, if any) and the purport of the whole pleadings]

2. Determination

A. The plaintiff's assertion

The Plaintiff entered into the instant substitute payment agreement on the condition that the Defendant would not claim retirement allowances from the Plaintiff upon retirement. However, the Plaintiff paid retirement allowances to the Defendant on the wind of claiming retirement allowances in violation of this provision. According to this, the instant substitute payment agreement is based on the Defendant’s deception or the Plaintiff’s mistake, and thus the said agreement is revoked by the delivery of the instant complaint. Accordingly, the Plaintiff is obliged to pay KRW 100, 628, 440, which is the sum of the wage and salary income tax, etc. paid by the Plaintiff as the restitution to the Plaintiff.

B. Determination

1) First of all, the Plaintiff’s above assertion is without merit, since there is no evidence to acknowledge that the Defendant made the instant payment agreement on the condition that the Defendant would not claim retirement allowances to the Plaintiff at the time of retirement.

2) Even if domestic affairs, the plaintiff, the defendant, and the defendant agreed to pay a retirement allowance to the plaintiff upon retirement under the condition that the plaintiff would not claim retirement allowance from the plaintiff, the plaintiff cannot receive the plaintiff's above assertion for the following reasons.

If the Defendant did not demand retirement pay to the Plaintiff at the time of retirement, it would be invalid in violation of Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005). (See Supreme Court Decision 2000Da27671 of Jul. 26, 2002, etc.) Meanwhile, the agreement to waive the right to retirement pay in advance is null and void, and if it can be revoked on the ground that the agreement to waive the right to retirement pay in advance is null and void, it would be deemed null and void, or that the agreement may be revoked on the ground of deception or mistake, such as the wage and salary tax paid by the Plaintiff to the Plaintiff. Thus, it would be unreasonable to recognize the validity of the prior waiver agreement to the Plaintiff, and it would be unreasonable to conclude that the agreement would be revoked on the ground of the legislative purport of the Plaintiff’s retirement allowance system under the Labor Standards Act (see, e.g., Supreme Court Decision 2006Da465660, Apr. 26, 2060.).

Meanwhile, Supreme Court en banc Decision 2007Da90760 Decided May 20, 2010 cited by the Plaintiff is related to the case where the employer and the employee agree to pay a certain amount in advance with the monthly salary or daily salary paid by the employee, along with the monthly salary paid by the employer and the daily salary. Thus, it is inappropriate to invoke the instant case. [In light of the legislative intent of the aforementioned provision as mandatory law, the legal principle of the previous agreement shall apply only where the employer and the employee have agreed to pay a certain amount in advance as additional retirement allowance separately from the wage (see Supreme Court Decision 2008Da9150, May 27, 2010)].

3) Ultimately, the Plaintiff’s above assertion appears to be any mother, but is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided as per Disposition.

Judges Kim Jong-soo

Judges Lee Jae-young

Judges Lee Dong-sik