Where an employer agrees to pay a certain amount of money under the name of the retirement allowance to the monthly wage paid by the employee and the employer, whether it is effective as retirement allowance payment under Article 34(1) of the Labor Standards Act (negative)

Article 34(1) of the Labor Standards Act provides that a retirement allowance shall be paid to a retired employee, and as a matter of principle, there is no room for an employer to pay a retirement allowance while the labor contract remains in existence, since the retirement allowance occurs only upon the termination of the labor relationship, which is a retirement allowance. Thus, even if an employer agreed to pay a certain amount of money as a retirement allowance under the monthly wage paid between the employer and the employee, it is not effective as a retirement allowance payment under Article 34(1) of the Labor Standards Act.

Article 34(1) of the Labor Standards Act

Supreme Court Decision 90Da14560 Decided June 28, 1991 (Gong1991, 2015), Supreme Court Decision 95Da19256 Decided May 14, 1996 (Gong1996Ha, 1837), Supreme Court Decision 96Da24699 Decided March 24, 1998 (Gong198Sang, 1131)

Defendant

A co-inspector;

Seoul District Court Decision 2001No1117 delivered on April 17, 2002

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. The summary of the facts charged in this case is that the employer who has employed six full-time workers and engaged in the vehicle management service business, and on February 11, 2001, who did not pay 2,173,516 won of retirement allowances paid to retired workers on March 1, 2001, and 14 days from the date of payment of retirement allowances without any agreement on extension of the due date between the parties concerned.

As to this, the court below affirmed the first instance court's findings and determination that the defendant and the employee of this case agreed one year of employment at the time of entering into a labor contract, and agreed to pay each 12 minutes of retirement allowances to the employees of this case on the basis of the total amount of 1 year wage, including Boners, retirement allowances, piece rates, and all other amounts related thereto. Based on the above facts, the defendant did not have a separate obligation to pay retirement allowances to them. Thus, the court below affirmed the first instance court's findings and determination that the defendant did not have a separate obligation to pay retirement allowances, and affirmed the first instance court's judgment that acquitted the defendant.

2. However, we cannot agree with the judgment of the court below that the retirement allowance has already been paid to the instant workers, and the Defendant does not have any separate obligation to pay the retirement allowance to them.

Article 34(1) of the Labor Standards Act provides that a retirement allowance shall be paid to a retired employee, and as a matter of principle, there is no room for the obligation to pay a retirement allowance while the labor contract remains in existence, since the retirement allowance occurs only upon the termination of the labor contract, which is a retirement allowance, (see Supreme Court Decisions 90Da14560, Jun. 28, 1991; 95Da19256, May 14, 196; 95Da19256, May 14, 199). Even if the defendant and the employee agreed to pay a certain amount of money as retirement allowance under the name of the monthly wage paid between the employee and the employee, it shall not be effective as a retirement allowance payment under Article 34(1) of the Labor Standards Act (Article 34(3) of the Labor Standards Act provides that an employer may, upon the employee’s request, settle the retirement allowance for the continuous period of employment before the employee’s retirement. However, the so-called interim retirement allowance payment system is not included in the agreement between the defendant and the agreement.

Nevertheless, the court below judged that the retirement allowance was already paid to the employees of this case, and that the defendant does not have the duty to pay retirement allowances separately, and found the defendant not guilty of the above facts charged constitutes a case where the facts against the rules of evidence are erroneous or the court erred by misapprehending the legal principles on the retirement allowance payment regulations of the Labor Standards Act. Thus, the ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)