Plaintiff 1 and one other (Law Firm Tae-Gyeong, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant-appellee)

Original ion Electric Co., Ltd. (Law Firm Nam-si, Counsel for defendant-appellant)

April 25, 2012

1. The defendant shall pay to the plaintiff 1 the amount of KRW 37,620,687 and the amount of KRW 32,184,772, and to the plaintiff 2 the amount of KRW 58,818,734 and the amount of KRW 47,76,32 each year from June 18, 201 to the date of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Defendant Company is a company established for the purpose of manufacturing and selling electronic industrial equipment, and the Plaintiffs were the employees of Defendant Company.

B. The Defendant Company was dissolved by the resolution of the general meeting of shareholders on October 31, 2005, and the Plaintiffs were terminated the employment contract on the same day after receiving notice of dismissal from the Defendant Company at that time.

C. Meanwhile, on May 28, 2007, the Defendant Company agreed with the Korea Metal Workers' Association Orion Electric Branch and the Defendant Company's Office Business and Technology Workers' Union on May 28, 2007, in selling its domestic assets, paid as soon as possible the amount of wages after the sale of its assets, and paid as consolation money 5% of the balance after the settlement of the sales price to workers, and the Trade Union shall not make any additional demand to the Defendant Company as to the shares in an overseas corporation or the proceeds from the sale of its assets. As an annex agreement, the Defendant Company agreed with the Trade Union's representative on the timing and method of the repayment of the wage obligation. However, the above consolation money was paid only to the employees receiving consolation money who accepted the contents of the agreement and agreed in writing.

In addition, around November 10, 2008, the Defendant Company prepared a specific proposal on the settlement of the above retirement allowances to the retired workers, and received 20% interest (A) per annum on the retirement allowances unpaid until January 31, 2009, or paid the principal and interest of retirement allowances and agreed consolation money and the part on the interest or delayed payment damages (B) requested the employees to give up the consent. The Plaintiffs did not agree to the agreement of the Orion Electric Branch of the Korea Metal Workers' Union and the Defendant Company's Business and Technology Workers' Union, or agreed to any settlement agreement of the Defendant Company.

D. After retirement, Plaintiff 1 was paid a total of KRW 32,240,531 (27,903,913 of retirement pay + KRW 1,898,480 of retirement allowance + KRW 1,898,480 of retirement allowance + KRW 539,658 of bonuses + KRW 47,776,32 of retirement allowance + KRW 42,032,019 + KRW 2,96,000 of retirement allowance + KRW 2,96,000 of retirement allowance + KRW 608,313 of the details of delayed payment of the money and valuables by Plaintiff. After that, Plaintiff 1 received each payment of the “amount indicated in the column for payment” in the separate column for payment of the money and valuables by Plaintiff.

On the other hand, under the premise that the interest of 20% per annum is added from November 15, 201, the amount paid by the defendant company shall be preferentially appropriated to the interest accrued to the funds in arrears in relation to the plaintiffs, and if the remaining amount is appropriated to the principal, it shall be as stated in the relevant portion of the amount in arrears of each plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 6, 7, Eul evidence Nos. 1 and 5 (including each number), the purport of the whole pleadings

2. Judgment on the grounds of the plaintiffs' claims

According to the above facts, the defendant company, the employer of the plaintiffs, has a duty to pay 32,184,772 won in arrears and 38,970,687 won in arrears plus 6,875,915 won in arrears and interest for delay, and 47,776,332 won in arrears and interest for delay plus 11,042 won in arrears and 58,818,734 won in arrears until June 17, 2011. The defendant company, the employer of the plaintiffs, the employer of the plaintiffs, has a duty to pay 37,620,687 won in arrears and 32,74,72,72 won in arrears, and the defendant company has a duty to pay 58,818,734 won in arrears and interest for delay to the plaintiff 2 by 37,620,687 won in this case. The defendant company, at the plaintiff 1's request, is obligated to pay 37,620,71,2374,71.7

3. Judgment on the argument of the defendant company

A. As to the advance notice of dismissal allowance

Defendant Company asserts that the Plaintiffs’ advance notice of dismissal allowance is KRW 949,240 in the case of Plaintiff 1, and KRW 1,070,000 in the case of Plaintiff 2.

In full view of the overall purport of the arguments in evidence Nos. 1, 2, 4, and 5 of evidence Nos. 2, 3-2, and 19-1 of the collective agreement between the defendant company and the trade union, it is recognized that the advance notice of dismissal is required to pay not less than 60 days' ordinary wages under Article 19-1 of the collective agreement between the defendant company and the trade union. The Daegu Regional Labor Agency also issued the detailed statement of delayed payment by calculating the advance notice of dismissal allowance of the plaintiff 1 as KRW 1,898,480, and KRW 2,140,000 in the case of the plaintiff 2, as alleged by the plaintiffs, as recognized earlier, it is recognized that the advance notice of dismissal allowance of the plaintiffs is recognized

(b) Claim for reduction of interest in arrears;

As the Defendant Company agreed to reduce damages for delay with the labor union representing the employees including the Plaintiffs upon settlement agreement on May 28, 2007, it asserts that it is unreasonable to bear all damages for delay from the date of occurrence of the obligation to pay the money and other valuables in arrears. Thus, the Defendant Company’s assertion that it is unreasonable to consider that the Defendant Company is responsible for all damages for delay from the date of occurrence of the obligation to pay the money and other valuables in arrears. As such, the wages (including bonuses) or retirement allowances for which the right to claim the payment has already occurred are transferred to the employees’ private property area and is responsible for the disposition of the employees. Thus, unless the labor union does not obtain an individual consent or authorization from the employees, it is not possible to take any action such as waiver or postponement of payment (see, e.g., Supreme Court Decision 2009Da76317, Jan. 28, 2010).

In addition, the defendant company failed to secure the financial resources to pay retirement allowances because it was unable to normally proceed with the sale of the company for 23 months due to the illegal occupation of the worker's factory under the initiative of the trade union after the dissolution of the company. Thus, the defendant company asserted that the above illegal occupation period has grounds for excluding interest in arrears under Article 18 (4) of the Enforcement Decree of the Labor Standards Act, but there is no evidence to acknowledge it, and the above circumstance claimed by the defendant company cannot be readily concluded to constitute grounds for excluding interest in arrears. Thus, the defendant company

Furthermore, the defendant company asserts that the application of Article 18 subparagraph 3 of the Enforcement Decree of the Labor Standards Act, i.e., the existence or absence of all or part of wages and retirement allowances whose payment is delayed, constitutes a case where the court or the Labor Relations Commission deems it appropriate to dispute the existence or absence of all or part of the wages and retirement allowances. However, the defendant

(c) Claim for deduction of withheld amount;

The defendant company asserts that the amount payable to the plaintiffs should be deducted from the withholding amount, etc., so the obligation of the person liable to collect the income tax to be withheld under Article 21 (2) 1 of the Framework Act on National Taxes is established when the income amount is paid in principle, and the corresponding recipient's obligation to collect the income tax is established. Thus, the payer cannot collect and deduct the source tax prior to the payment date of the income amount. The scope of income is the income subject to withholding, and the scope of income itself does not automatically reduce the source tax amount (see, e.g., Supreme Court Decisions 94Da23180, Sept. 23, 1994; 91Da38075, May 26, 1992). The defendant company's assertion that the above defendant company is liable to pay only the remaining amount after deducting the withholding tax amount from the amount equivalent to the wages to be paid to the plaintiffs.

4. Conclusion

The plaintiffs' claims are justified, so it is so decided as per Disposition.

[Attachment]

Judges Lee Jae-ok