2012 Gaba28710 Baba

1. Ma○○;

Busan Shipping Daegu ○○ Dong

2. Ma○○;

Busan Jin-gu 00 Dong

3. Kim Jae-in

Busan Seo-gu ○○ Dong

4. Yellow dust ○○;

Busan Geum-gu 00 Dong

5. Guide.

Busan Suwon-gu 00 Dong

6. Prostitution○○;

Busan Jin-gu ○○ Dong

Plaintiffs (Law Firm Jeong, Attorneys Park Sung-sung, and Kim Sung-il, Counsel for the plaintiff-appellant)

tanks 00

Busan So-gu 00 Dong

Attorney Jeong Jin-ia, Counsel for the defendant-appellant

September 18, 2012

October 16, 2012

1. All of the plaintiffs' claims are dismissed.

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

The defendant shall complete the service of 21,514,207 won to the plaintiffs and a copy of the complaint of this case from the next day.

By the date, 20% interest shall be paid at the rate of 20% per annum.

The plaintiffs concluded a labor contract with the defendant at the beginning of each year including the money in the name of retirement allowances for the next one year, and accordingly paid the money in the name of retirement allowances. The plaintiffs asserted that the above amount should be returned to the plaintiff as unjust enrichment, since it is not recognized as effective as the payment of retirement allowances, and there is no validity as the payment of wages as provided by the labor-related

Even though an employer actually pays to an employee money in the name of a retirement allowance, it is not recognized that it is not effective as a payment of a regular retirement allowance, and if it is not recognized that it is effective as a payment of wages under Article 18 of the Act, it is reasonable from the perspective of fairness to view that an employer should return the money in the name of a retirement allowance received by an employee to the employer as unjust enrichment, while an employee suffered losses equivalent to the above money by paying the same amount to an employee without any legal ground, while an employee would have earned profits equivalent to the same amount (see Supreme Court

5. The Supreme Court en banc Decision 2007Da90760 Decided 20, 207. However, considering the legislative intent of the retirement allowance system as a mandatory law, the above legal principle is applied only on the premise that there is a substantive retirement allowance division agreement between the employer and the employee. Although the relevant agreement entered into between the employer and the employee is merely the substance of the agreement, if the employer only takes the form of a retirement allowance division agreement in order to evade the payment of the retirement allowance, the above legal principle is not applicable. In other words, there is an agreement between the employer and the employee that included the retirement allowance in the monthly pay or daily pay and the payment of the separate retirement allowance at the time of retirement. In other words, considering the amount of the employment contract, including the above nominal retirement allowance, should not be disadvantageous to the employee in light of the previous employment contract or the Labor Standards Act, the above legal principle is applicable only where the employer and the employee actually agreed to pay a certain amount under the pretext of the additional retirement allowance separately from the wage (see Supreme Court Decision 2005Da5278, May 29, 20107).

In light of the above legal principles, it is examined whether the amount of money in the name of retirement benefits distinct from wages is specified at the time of the labor contract, and whether an employer and an employee agree to pay a certain amount as additional retirement allowances separately from wages.

In accordance with each evidence submitted by the plaintiffs, it is insufficient to recognize that the amount of money in the name of retirement benefits distinct from wages was specified at the time of the labor contract, or that an employer and an employee agreed to pay a certain amount in substance as additional retirement allowances, separately from wages, and there is no other evidence to acknowledge it.

Rather, the following circumstances acknowledged by the Plaintiffs and the Defendant are: (a) the Plaintiffs and the Defendant, upon entering into an annual salary contract, prepared a written employment contract to the effect that the amount or ratio of the retirement allowances included in the annual salary, but did not specify the amount or ratio of the retirement allowances included in the employment contract; (b) the monthly salary statement that the Plaintiffs received each month from the Defendant stated in the (basic) salary, total payment, and the next payment (actual payment). However, there are only items concerning the settlement of the retirement allowances, and the amount is in the blank space; (c) the sum of the actual payment of the monthly salary is consistent with the annual salary under the annual salary contract; (d) the Defendants were dissatisfied with the annual salary under the above monthly salary contract; (d) the Plaintiff was dissatisfied with the Defendant’s unpaid retirement allowances; (e) the Plaintiff recognized the payment of the retirement allowances under the premise that the amount claimed by the Busan Regional Labor Agency is a wage, and calculated and paid the retirement allowances to the Defendants; and (e) the Plaintiffs were not paid the retirement allowances under the actual form and payment under the employment contract.

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

Judges Clinical Citizens