2016Na10634 Wages and retirement allowances

A person shall be appointed.

A person shall be appointed.

Daejeon District Court Decision 2016Gau2228 Decided November 15, 2016

August 9, 2017

October 18, 2017

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

The defendant shall pay to the plaintiff 7,62, 283 won with 20% interest per annum from January 17, 2017 to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 1/2 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff KRW 15,324,56 and interest thereon from March 8, 2016 to the day of complete payment.

20% of the 20% interest shall be paid.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination as to the cause of claim

Comprehensively taking account of the purport of Gap evidence No. 1’s entries and arguments, the plaintiff was employed by the defendant who operates Crerere, and was employed from June 1, 2013 to February 22, 2016, and retired from office. It is recognized that the plaintiff did not receive wages of 3,300,000, retirement allowances of 12,024,566 won from the defendant for February 2016.

Therefore, barring special circumstances, the Defendant is obligated to pay the Plaintiff the aforementioned unpaid wages and retirement allowances totaling KRW 15,324,566 ( = 3,300,00 + 12,024,566) and delay damages therefrom.

2. Judgment on the defendant's defense, etc.

A. Summary of the defense

1) [Defenses as to the retirement allowance division agreement] At the time when the Plaintiff and the Defendant concluded an employment contract, they agreed to pay the retirement allowance as a monthly wage. The Defendant actually paid the Plaintiff a total of KRW 4,500,000, including the retirement allowance of KRW 500,000, as monthly wage in accordance with the agreement, and has already paid the retirement allowance in full, the Defendant is not obligated to pay the retirement allowance to the Plaintiff. Thus, the Defendant is not obligated to pay the retirement allowance to the Plaintiff. (A) The Defendant offsets the Plaintiff against the above wage and retirement allowance claims, which are the passive claims, by making the Plaintiff’s automatic claims against the Plaintiff as set forth in the following subparagraphs. (A) [Attachment 1] [Attachment 1]] of the Plaintiff’s ownership on July 25, 2013.

1. In a case where an agreement on the division of a retirement allowance as alleged in paragraph (1) is null and void due to a breakdown in the cream owned by the Defendant, the claim for damages equivalent to the total amount of KRW 75,850,912, which the Defendant had against the Plaintiff, is filed against the Plaintiff, the claim for return of unjust enrichment against the amount that the Defendant paid in 50,000 won per month to the Plaintiff as retirement allowance.

B. Determination on a retirement allowance installment agreement

If an employer and an employee agree to pay in advance a certain amount of money as retirement allowance along with a monthly or daily allowance paid by the employer and the employee, the agreement is null and void in violation of Article 8 of the Act, which is a mandatory law, since an employee waives his/her right to claim a retirement allowance arising at the time of the last retirement unless it is acknowledged as an interim settlement of accounts for retirement benefits under the main sentence of Article 8 (2) of the Guarantee of Workers' Retirement Benefits Act (see, e.g., Supreme Court Decisions 2000Da27671, Jul. 26, 2002; 2007Do4171, Aug. 23, 2007). As a result, even if an employer paid a certain amount of money as retirement allowance to an employee under the division agreement, it is not effective as a retirement allowance payment (see Supreme Court en banc Decision 2007Da90760, May 20, 2010).

The evidence presented by the Defendant alone is insufficient to recognize the fact that the Plaintiff and the Defendant agreed to make an interim settlement of retirement allowances between the Plaintiff and the Defendant, and there is no other evidence to acknowledge it, and the Defendant himself also appeared on the first day for pleading of the first instance court and agreed to pay the benefits including retirement allowances from the beginning, and was not an agreement in the interim settlement form.

Therefore, we cannot accept this part of the defendant's assertion.

C. Judgment on the defense of set-off No. 1

According to the main text of Article 43(1) of the Labor Standards Act, since wages are paid in full to workers in currency, it is in principle that an employer does not set off against the worker’s wage claims with a claim that the employer has against the worker. This is intended to protect the workers in economic and social subordinate relationship, and the same applies to the retirement allowances that the worker is entitled to receive, as it has the nature of the wage (see, e.g., Supreme Court Decision 2011Da22061, Sept. 8, 2011). Therefore, the defendant’s defense of set-off against this part cannot be accepted without need to further examine.

D. Determination as to the counterclaim of set-off

1) Comprehensively taking into account the following facts and circumstances acknowledged by the purport of the entire pleadings as to the existence of an agreement on the division of retirement allowances under subparagraph 1-1, 2, and 9-4 through 8 of the evidence Nos. 1-2, 9-9, witness D, and E’s testimony, it is reasonable to conclude that the Plaintiff and the Defendant concluded an employment contract and determined monthly wages as KRW 4,500,000, among them, and that the Defendant would pay KRW 500,000 as retirement allowances at the time when the Plaintiff and the Defendant entered into an employment contract. (A) At the time of entering into an employment contract with the Defendant, the average engineer monthly wage of the voice group located in the Defendant’s place of business was KRW 4,00,000, which includes retirement allowances, and the other news officers were paid as well. However, unlike such practices, it seems that there was no motive to form an employment relationship with the Defendant by additionally paying to the Plaintiff the amount of KRW 5,500,00.

B) In the event of the bankruptcy of a small-scale enterprise, such as CV, operated by the Defendant, there exists a risk of being unable to receive the retirement allowance for the employed employee properly. From the standpoint of the Plaintiff, an employee, it appears that the aforementioned risk could have been avoided by receiving the payment of the retirement allowance including the retirement allowance. Therefore, it does not seem to be disadvantageous to the Plaintiff as well, and there was a motive to receive the retirement allowance through

2) Determination as to whether a claim for return of unjust enrichment with respect to retirement allowances paid upon the payment of retirement pay in installments is set off against the automatic claim.

The agreement that an employer and an employee shall pay in advance a certain amount of money with a retirement allowance shall be null and void, unless a retirement allowance was paid in interim settlement at the worker’s request due to the purchase of housing, etc., and Article 3(1) of the Enforcement Decree of the Guarantee of Workers’ Retirement Benefits Act provides that while an employee suffered damages equivalent to the above money by paying the amount in the name of retirement allowance to an employee without any legal cause, an employee shall return the amount in the name of the retirement allowance received to the employer as unjust enrichment. In addition, where an employee has paid in excess of wages, barring any special circumstance, the employer may set off the amount in the name of the retirement allowance received by the employee with the right to request the return of the above excess amount as an automatic claim (Supreme Court en banc Decision 2007Da90760 Decided May 20, 2010).

According to the above facts, the Defendant paid KRW 500,000 per month to the Plaintiff for 32 months (from June 1, 2013 to January 31, 2016) as retirement allowance. The aggregate amount is KRW 16,00,000 ( = 500,000 x 32 months). The Plaintiff received the above KRW 16,00,000 from the Defendant without any legal ground. Accordingly, in light of the above legal principles, the Defendant may offset the Plaintiff’s right to return unjust enrichment against the wage and retirement allowance claims claimed by the Plaintiff as the automatic claim. 3)

Article 246(1)5 of the Civil Execution Act provides that "the amount equivalent to 1/2 of the retirement allowance and other wage claims of similar nature" shall be prohibited from seizure for the public interest of livelihood security of the debtor who is a worker, and for social policy reasons. Article 497 of the Civil Act provides that "the obligor of the obligation to prohibit seizure shall not set-off against the creditor." Thus, set-off of the employee's retirement allowance claims with the amount equivalent to the amount paid by the employer to the employee as retirement allowance shall be limited to an amount equivalent to the portion exceeding 1/2 of the retirement allowance claims (Supreme Court en banc Decision 2007Da90760 Decided May 20, 2010). Therefore, it shall be allowed to set-off only for the amount exceeding the amount equivalent to 15, 324, 566 won, which is equivalent to 1/2 of the wage and retirement allowance claims claimed by the Plaintiff, which is equivalent to 7,662,283 won).

The defendant's declaration of intent to set off each of the above claims on an equal amount is made on January 2017.

10. The legal brief reached the Plaintiff on January 16, 2017 and the due date for the repayment of unjust enrichment claims has arrived, and the Plaintiff’s wage and retirement allowance claims, which are several claims, reached the due date on March 7, 2016, and both claims were set off on the same day after the due date arrives.

The Plaintiff’s claim arising from the above offset date is the same as the statement in the column of “passive claim” as set forth in the above 3). Accordingly, in accordance with the legal principles as set forth in the above 3), the amount equivalent to the portion exceeding KRW 7,62,283, which is the amount equivalent to one half of the Plaintiff’s wage and retirement allowance claims, and each damages for delay thereof are extinguished from the amount equal to the Defendant’s unjust enrichment return claim retroactively to the above offset date upon the Defendant’s expression of intent of offset as set-off (see Articles 499, 479(1), and 477 subparag. 4 of the Civil Act, it shall be appropriated first to repay each damages for delay, and the wages and retirement allowances claim shall be appropriated for each payment in proportion to the amount unpaid.

Accordingly, the Plaintiff’s wage and retirement allowance claims against the Defendant ( = 15, 324, 566 won - 7, 662, and 283 won) and damages for delay from January 17, 2017, which are the day following the offset, remain. The Defendant’s counterclaim for offset is accepted within the scope of the above recognition.

E. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 20% per annum under the Labor Standards Act from January 17, 2017 to the date of full payment, which is the day following the set-off of KRW 7,62,283 and the day following the set-off.

3. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance is partially unfair, the defendant's appeal is partially accepted, and the part against the defendant corresponding to the amount ordered to pay exceeding the above recognition amount among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

Judges of the presiding judge;

Judges who are unable to sign and affix a seal due to the last leapon childbirth leave.

The presiding judge

A printing company;

Judges Park Jong-young

1) From March 8, 2016 to January 16, 2017, the above-mentioned offset date, the damages for delay calculated by 20% per annum with respect to the amount of the above-mentioned paragraphs 1 and 2 as from January 16, 2017.

( = 15,324, 566 X 20% x 315/365).