Denial of unjust enrichment at the time when the obligation has been extinguished by extinctive prescription;

Even if an obligation is extinguished by extinctive prescription and thus benefit therefrom is obtained, such benefit shall not be a legal ground, since it is obtained by the effect of extinctive prescription as prescribed by Acts.

Article 741 of the Civil Act

Plaintiff 1 and one other

Korea Commercial Corporation

Seoul Central District Court (70 Ghana831) in the first instance trial

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

The plaintiffs' legal representative shall revoke the original judgment.

The defendant shall pay to the plaintiff 1 an amount of KRW 1,200,000 and an amount of KRW 1,250,000 from August 22, 1969 to the date of full payment, and an amount of KRW 1,250,00 to the plaintiff 2 at the rate of 5% per annum from May 1, 1969 to the date of full payment.

All the costs of lawsuit are assessed against the defendant and the declaration of provisional execution.

1. Details of employment contracts;

On February 10, 1967, Plaintiff 1 entered into an employment contract with the Defendant on February 29, 1968, and was engaged in the land transportation of USF cargo in the Republic of Korea outside the Defendant’s overseas, and Plaintiff 1 was retired from the Defendant Company on August 21, 1969 and received each retirement allowance on August 21, 1969; the Plaintiffs agreed to work 10 hours a day in an employment contract between the Plaintiffs and the Defendant on May 10, 1969; the Plaintiffs agreed to work 260 hours a day on January 29, but it was not easy to rest on paid holidays; the Plaintiffs continued to work for 20 hours a day on the next day and for 30 hours a month in total (the same shall apply to the case where the Plaintiffs continued to work for 10 hours a day on the next day on the first day on the second day on the first day on the second day on the second day on the second day on the second day on the third day on the second day on the second day.

2. Determination of the applicable law;

Since the work provided by the plaintiffs was conducted in the Republic of South and North Korea, the law of the Republic of South and North Korea shall apply to the plaintiffs' claim for overtime allowance, etc., and the Labor Standards Act of the Republic of Korea shall not be applied. Thus, according to the main sentence of Article 9 of the Conflict of Laws Act, the law applicable to the establishment and validity of a juristic act shall be established by the parties' intent. Thus, according to the evidence No. 1-8 (labor Contract) of the Republic of Korea without dispute over the establishment of a juristic act, if a worker suffers from an employment accident, the worker is required to deal with it in accordance with the Labor Standards Act of the Republic of Korea, and the worker bears the income tax on wages under the Income Tax Act of the Republic of Korea, and the worker is also obliged to deposit under the law of the Republic of Korea. Considering these facts and labor contract, it appears that the parties agreed to the civil dispute arising from a labor contract between the plaintiffs and the defendant as the law of the Republic of Korea as the law of the Republic of South and North Korea.

3. Determination on the defense of extinctive prescription

Even if the Labor Standards Act of Korea is applied in this case, the defendant asserts that the right to claim overtime allowance, night work allowance, monthly leave allowance, annual leave allowance, and retirement allowance, as claimed by the plaintiffs, has already been expired, so the defendant's defense of the extinctive prescription against the allowances excluding retirement allowance has not been valid (the extinctive prescription period has expired, as acknowledged by the plaintiff's claim for retirement allowance) since May 1, 1968 and July 31, 1969, as shown in the attached Table (B). The plaintiff 1 claimed each allowance from February 1, 1968 to April 30, 1969, and since the date on which the plaintiff's principal lawsuit was filed was obvious on January 27, 1970 in the record, it is obvious that the two-year extinctive prescription period under Article 41 of the Labor Standards Act has not expired (the plaintiff's claim for retirement allowance has been completed after the plaintiff's claim for retirement allowance).

4. Determination on the claim for various allowances

Article 11 of the Enforcement Decree of the Labor Standards Act provides that "The basic wage agreed upon to the plaintiffs during the contract classification period in the attached Table (C) is the amount in the column of (e) of the attached Table, and that the amount in the column of (f) of the attached Table is paid to the plaintiffs as shown in the attached Table 2, the plaintiffs alleged that the basic wage in the judgment does not dispute the plaintiffs' assertion that the amount in the column of (d) of the attached Table 2 is paid to the plaintiffs, but the plaintiffs asserted that the basic wage in the trial is not the amount in the column of (e) of the attached Table 2, but the amount in the attached Table 3, the basic wage in the judgment in the column of (f) of the attached Table 2, although the monthly wage in the above month is immediately basic wage (ordinary wage), the determination in the attached Table 11 of the Enforcement Decree of the Labor Standards Act is different from the party members, and it is insufficient to prove that the confession in the attached Table 2, as well as that the confession in the attached Table 2 is against the truth.

A) Extended allowance

The facts that the plaintiffs worked in excess of 40 hours per month more than the prescribed working hours of 260 hours are as seen earlier. As such, the defendant is obligated to pay the 40 hours per month of extended working hours in addition to 50/100 of ordinary wages under Article 46 of the Labor Standards Act, so the defendant is obligated to pay the plaintiffs 40 hours per month of extended working hours in addition to 50/100 of ordinary wages. Thus, the defendant is obligated to pay 50/100 of ordinary wages as additional dues for 40 hours per month of extended working hours. The calculation by the plaintiff per month is identical to the amount in the column in the attached Table (h) (i.e., the ordinary wages per month

B) Night work allowances

The facts that the plaintiffs conducted night work 97 hours and 30 minutes per month are included in the hours every month during which the plaintiffs worked 20 hours per day (10 hours per day per day) as set out above, and since the basic monthly wage was already paid to the plaintiffs, the defendant is required to pay 50/100 of the ordinary wage for night work allowances as additional dues. Thus, it is calculated on a monthly basis by the plaintiff, and it is same as the amount in the column in the attached Table (i) (the ordinary wage per hour x night work hours x 97.5.5 x 50/100).

(c) weekly holiday work allowances, monthly pay allowances, annual pay allowances;

Article 45, Article 47 and Article 48 of the Labor Standards Act provide that an employer shall grant workers paid holidays of not less than one week on average, and eight-day paid holidays on a monthly basis. There is no dispute between the parties that the Plaintiffs continued to work without using paid holidays or paid leave during their work period. The Plaintiffs are obligated to pay 50/100 or more of ordinary wages under Article 46 of the Labor Standards Act for paid holidays. However, the Plaintiffs are obligated to pay 150/10 or more of the ordinary wages on a weekly basis, but the Defendant is not obligated to pay 40/10 or more of the ordinary wages on paid holidays under Article 46 of the Enforcement Decree of the Labor Standards Act (the current Enforcement Decree of the Labor Standards Act 】 Article 33(1) of the Labor Standards Act 】 (the current Enforcement Decree of the Labor Standards Act 】 The Defendant is obligated to pay 40/100 or more of the ordinary wages on paid holidays under Article 47 of the Labor Standards Act as well as 60/47 of the Labor Standards Act.

5. Determination on the claim for retirement allowance

The plaintiffs asserted that there exists a remaining retirement allowance when they received 390 months from each of the defendant's retirement allowances. Accordingly, the plaintiffs filed a retirement allowance claim on January 27, 1970, which is the date for filing the lawsuit, and subsequently withdrawn lawfully with the defendant's consent on April 16, 1971, which is the date for filing the lawsuit. The plaintiffs filed a retirement allowance claim again on March 9, 1972, and it is evident in the record that the plaintiffs are claiming a retirement allowance again on March 9, 1972. If a lawsuit is withdrawn, the interruption of the prescription is no longer effective, and if a lawsuit is again filed within six months, the prescription period is interrupted due to the first judicial claim. Accordingly, the plaintiffs' claim again after six months from the time of withdrawing the retirement allowance claim, which is the date for filing the retirement allowance claim, the remaining period of extinctive prescription of the plaintiffs' retirement allowance claim cannot be viewed as being interrupted from the point of time of filing the first claim for retirement allowance claim.

If a retirement allowance claim expired by prescription, the Plaintiffs asserted that the Defendant exempted the Defendant from the obligation to pay the retirement allowance, and thus, they were obligated to return the amount extinguished by prescription as unjust enrichment. However, on the premise that there were remaining retirement allowances asserted by the Plaintiffs, the claim for retirement allowance does not have the obligation to pay the retirement allowance as above, and as long as the system of the statute of limitations recognizes that the Defendant gains the benefits therefrom, it cannot be deemed that the benefits that the Defendant gains from the effect of extinctive prescription are gains without legal grounds. Accordingly, the Plaintiffs’ unjust enrichment assertion is groundless.

6. Conclusion

Therefore, the legal allowances to be paid by the defendant to the plaintiffs are the same as the sum of the amounts in (m) (i) (k) (k) (k) (l) of the attached Table. Thus, as seen earlier, the plaintiffs had already been paid the amount in the column in (f) of the attached Table as allowances by the defendant. Accordingly, the plaintiffs would have received the payment from the defendant in excess of the amount in the (m) column in the attached Table after subtracting the amount in (f) column in the attached Table from the amount in (f) of the attached Table. Accordingly, the plaintiffs' claim in this case under the premise that the plaintiffs' claim for allowances exists, without merit. The original judgment bearing this conclusion is just and without merit, dismissed, and the costs of lawsuit shall be borne by the losing party and it is so decided as per Disposition.

Judges Noh Jeong-hee (Presiding Judge)