207dan13288 Wages

1. A;

2. B

3. C.

4. D;

[Plaintiff-Appellant] Q. R

Public-service Advocates S. U.S.

E

Attorney Shin-chul et al., Counsel for the defendant

February 19, 2008

March 18, 2008

1. The defendant shall pay to the plaintiff A 13,395,240 won, 10,776,200 won, 3,349,680 won to the plaintiff C, 7,354,010 won, and 20% interest per annum from August 0, 2006 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. Determination on the cause of the claim

(a) Facts of recognition;

The following facts may be acknowledged as either in dispute between the parties or in full view of the respective entries in Gap evidence 1 and 2 and the purport of all pleadings:

(1) From March 0, 199 to July 0, 1999, Plaintiff B served as Plaintiff C, from Plaintiff C, from February 0, 2004 to Plaintiff D, from September 00, 2002 to Plaintiff C, respectively, as Plaintiff ○○ (30-0), as Plaintiff’s artist at each of the Defendant’s Busan competent administrative agencies, and on July 00, 2006.

(2) The retirement allowances for which the plaintiffs did not receive from the defendant are indicated in the attached Form “Omission of Retirement”.

B. Determination

According to the above facts of recognition, the defendant is obligated to pay to the plaintiffs each retirement allowance stated in attached Form "Omission" and damages for delay calculated at the rate of 20% per annum under Article 36-2 (1) of the former Labor Standards Act (amended by Act No. 7465 of March 31, 2005) and Article 13 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18912 of Jun. 30, 2005) from August 0, 2006 to the date of full payment, 14 days after the retirement of the plaintiffs.

2. Judgment on the defendant's assertion

(a) Claim for interim settlement of retirement allowances;

(1) The defendant's assertion

The defendant set aside a certain amount of retirement allowance every month from the time of entry of plaintiff A and B, and at the request of the above plaintiffs, the defendant paid the plaintiff A with a certain amount of retirement allowance of 1,200,000 won on August 00, 201, 90,000 won on March 0, 2002, 829,138 won on May 0, 2003, and 60,000 won on March 00, 2001, and 290,645 won on June 29, 201 to the plaintiff B as an interim interim adjustment of retirement allowance. Thus, the continuous employment period of the plaintiff A and B should be calculated from the date following the date of the interim adjustment of retirement allowance until the retirement day, and even after the retirement period, since the defendant paid the retirement allowance at the request of the plaintiffs, including the plaintiffs, as well as the retirement allowances in the same way, there is no obligation to pay the retirement allowance again.

(2) Determination:

(A) Specific claim for retirement allowance is not effective as retirement allowance payment under Article 34 of the former Labor Standards Act and Article 8(1) of the former Act on the Guarantee of Workers' Retirement Benefits (Act No. 7636, Jul. 29, 2005). Further, the agreement to receive retirement allowance including the above monthly retirement allowance under Article 34 of the former Act is waiver of the right to claim retirement allowance arising from the final retirement, and is null and void as it violates Article 30 of the former Act, which is a mandatory law. However, the employer may, upon the employee’s request, settle accounts in advance for the period of his continuous employment, and pay it to the said employee under the condition that it would be valid as retirement allowance under Article 34 of the former Labor Standards Act and Article 8(2) of the former Guarantee of Workers’ Retirement Benefits Act. However, the Defendant’s claim for interim retirement allowance under the premise that the above interim retirement allowance under Article 20 of the former Act was not an interim retirement allowance under the premise that it would be an interim retirement allowance under the condition of 20.

C) In addition, according to the statements in subparagraphs 1-4 and 5 of subparagraph 1-5, the plaintiffs' salary statement is classified as retirement allowance item by 10% of the total amount of payment added to the basic pay every month, and in the case of the plaintiffs C, it is recognized that the contract signed on May 0, 2005, stating the provision that the payment of the retirement allowance included in the retirement allowance was made on or around May 0, 2005. Furthermore, with regard to the fact that the above payment method was made individually and explicitly by the plaintiffs' request, it is insufficient to recognize it by only the above statements in subparagraph 1-3, 6, 7, 8, 10, and 11, and there is no other evidence to acknowledge it. Rather, the above statements in subparagraphs 1-3 and 5-3 of subparagraph 1-5 are considered as a whole, namely, the plaintiffs received 10% of the standard sales amount (20% of the standard sales amount) determined in accordance with the basic wage year since their entry.

In light of the fact that there was no Dong, it is reasonable to view that the employer paid part of the wages already paid by the Defendant as the nominal retirement allowance.

Therefore, since the money paid by the defendant as classified as retirement allowance item per month cannot be recognized as effective as retirement allowance payment, the above argument by the defendant cannot be accepted.

(b) argument concerning the calculation of average wages;

The Defendant asserts that the amount equivalent to 10% of the average wages, which are the basis for the calculation of the retirement allowances claimed by the Plaintiffs, should be calculated by considering the deducted amount as average wages. However, as seen earlier, the Defendant’s payment of retirement allowances does not take effect as retirement allowances, and there is no change in the calculation method or level of wages before and after the Defendant paid the monthly amount including the money in the items of retirement allowances. In light of the above, the amount paid by the Defendant as retirement allowances should be deemed as part of ordinary wages, and the above argument by the Defendant is groundless

(c) Claim for deduction or offsetting of the retirement allowance already paid;

If the amount paid to Plaintiff A and B as an interim settlement of retirement pay or the amount paid to the Plaintiffs as retirement pay is not recognized as effective as retirement pay, it should be returned to the Defendant as unjust enrichment. Thus, the Defendant asserts that the above amount should be deducted from the amount of retirement payment of the Plaintiffs, or the above unjust enrichment return claim should be offset against the amount equal to that of the Plaintiffs’ retirement allowance claim.

As seen earlier, there is a lack of evidence to acknowledge that Plaintiff A and B received each interim settlement amount of retirement pay (the interim settlement amount of retirement pay paid by Plaintiff A on March 0, 2002, May 0, 2003, and the settlement amount by Plaintiff B on June 0, 2001, as seen earlier) by the Defendant’s assertion (However, as long as the Plaintiff claimed only the retirement allowance amounting to the number of consecutive years after August 00, 2001, which falls under the number of consecutive years after the Plaintiff’s recognition, it does not have to be deducted from the retirement allowance that the Defendant should pay to the Plaintiffs as part of ordinary wages, since the Defendant’s deduction or set-off on the premise that unjust enrichment is a part of unjust enrichment.

3. Conclusion

Thus, the plaintiffs' claims of this case shall be accepted on the grounds of all the reasons.

Judges Hong Young-young