(영문) 수원지방법원 2009.5.8.선고 2008나22150 판결

The defendant shall pay to the plaintiff (designated parties) an amount of 19,070,601 won, 3,237,849 won, and 20% interest per annum from September 0, 2007 to the date of full payment. (hereinafter in this case, the designated parties and the designated parties shall be all the plaintiff. The plaintiff B shall be the plaintiff. The plaintiff shall seek the payment of unpaid retirement allowances, etc. and overtime allowances (2,307,450 won) for retirement allowances, etc., and was sentenced to a ruling that dismissed the claim for retirement allowances, etc., and the defendant shall only file an appeal against the judgment of the first instance. Thus, the part of the first instance court shall not fall under the scope of the judgment of this court).

Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

Reasons

1. Basic facts

The following facts may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap's evidence 1 and 3, Eul evidence 1, Eul evidence 7-95 (including the virtual number) or each entry in Eul's evidence 1 and 3, Eul's evidence 1, and Eul's evidence 7-95.

A. Status of the Parties

Plaintiff B is a person who worked as the equiter of an apartment unit managed by the Defendant from July 00, 200 to August 00, 2007, and Plaintiff B is a person who worked as the equiter of an apartment unit managed by the Defendant, and Plaintiff A is a person who worked as the equiter from January 0, 2003 to August 00, 2007.

(b) Prepaid, etc. of retirement allowances;

(1) When the Defendant pays the Plaintiff’s wages to the Plaintiff, the Defendant paid the amount in the name of a year-minute retirement allowance under the Labor Standards Act by including the amount in 12 installments into monthly wages as required by the Defendant, and did not pay a separate retirement allowance at the time of retirement (such as the above payment of the amount in the name of a retirement allowance by including it in monthly wages, and the method of not paying a separate retirement allowance is called the pre-paid retirement payment method).

(2) On April 00, 2005, the Defendant paid KRW 2,596,870 to the Plaintiff’s interim payment of the retirement allowance corresponding to the period from the time to the time, and thereafter, paid the amount in the name of the retirement allowance in installments and according to the retirement pay method, and did not pay a separate retirement allowance at the time of retirement.

(3) As examined below, the retirement allowance pay method (excluding interim accounts for retirement against Plaintiff A on April 00, 2005) is null and void. In the event that the amount paid as retirement pay is included in the average wage, the retirement allowance to be paid by the Plaintiffs is KRW 19,890,561 in the case of Plaintiff B, and KRW 3,147,219 in the case of Plaintiff A.

(1) The Defendant did not pay to the Plaintiff B the amount of KRW 2,850,80 on August 8, 2007, the amount of monthly paid leave allowance from 2004 to 2007, KRW 781, KRW 160 on monthly paid leave allowance, KRW 1,379, and KRW 790 on August 2007 to the Plaintiff C (including the amount of unpaid wages, etc. paid as retirement allowance according to the retirement pay method).

(2) After filing the instant lawsuit, the Defendant paid KRW 6,759,370 in total on five occasions to Plaintiff B, and KRW 1,289,160 in total on two occasions to Plaintiff A, and KRW 1,289,160 in total.

2. Determination

(a) Obligation to pay retirement allowances, etc.;

The defendant's retirement allowance advance payment method has no effect as retirement allowance payment, and since it cannot be deemed that the plaintiffs unjust enrichment from the amount paid as retirement allowance among the monthly wages, the defendant is obligated to pay to the plaintiff Eul 16, 763, 151 won (23, 522, 521 won - 6, 759, 370 won), 3, 237, 849 won (4, 527, 009 - 1, 289, 160 won) and damages for delay calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from September 0, 2007 to the date of full payment.

B. The defendant's assertion

(1) The retirement allowance advance scheme shall be effective. (2) If the retirement allowance advance scheme is invalid, since the amount that the plaintiffs received as a retirement allowance is unjust enrichment, it shall be deducted from the retirement allowance, etc. to which the plaintiffs are paid.

C. Judgment on the defendant's assertion

However, the defendant's argument is without merit as shown below.

(1) The amount of retirement pay under Articles 4 and 8(1) of the Act on the Guarantee of Workers' Retirement Benefits (hereinafter “the Act”) is generated only when the termination of a labor relationship is required. As such, there is no room for the duty to pay a retirement allowance in principle while a labor contract remains in existence, so even if the employer has paid part of the monthly wage as retirement pay, such as the method of advance payment of retirement pay, it is invalid as retirement pay.

(2) In addition, Article 8(2) of the Act provides for the interim settlement of retirement allowances corresponding to the previous period of employment according to the employee’s voluntary and explicit interim settlement request. However, this is not only an interim settlement of retirement allowances corresponding to the previous period of employment, but also the Defendant’s prior payment method of retirement allowances is the method of uniformly applying the retirement allowances to all employees according to the Defendant’s needs, and it is not an interim settlement according to the employee’s voluntary demand. Thus, it cannot be deemed a legitimate interim settlement of retirement allowances.

(3) Furthermore, in light of the following: (a) in principle, money and valuables to be paid periodically and uniformly to an employee shall be deemed to be included in the average wage, which serves as the basis for the calculation of ordinary wages or retirement allowances, regardless of its title; (b) in a case where an employee’s obligation to return an amount paid each month by deeming the amount as the monthly wage under the method of retirement allowance payment as unjust enrichment is recognized, it is different from deeming that the method of retirement allowance is valid; (c) in fact, it may lead to the reduction of the amount including retirement allowances, compared to other businesses of the same kind, which did not adopt the method of retirement allowance payment; and (d) in a case where the Defendant adopted the method of retirement allowance which goes against the law as one of its own needs, it is reasonable to deem that the Defendant’s claim for the payment of the amount paid to the Plaintiffs as part of the wages regardless of its title, which constitutes the basis for the calculation of retirement allowances; and (e) the Plaintiffs’ unjust enrichment cannot be deemed to constitute abuse of rights under the principle of good faith.

3. Conclusion

If so, the claim for retirement allowance of this case, other than overtime allowances, will be accepted on the ground of the reason.

F. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.