Plaintiff (Counterclaim Defendant) (Attorney Hwang Ho-ho, Counsel for the plaintiff-appellant)

Hanyang Engineering Co., Ltd.

April 5, 2017

1. The plaintiff (Counterclaim defendant)'s main claim and the defendant (Counterclaim plaintiff)'s counterclaim are all dismissed.

2. Expenses incurred by a principal lawsuit and a counterclaim shall be borne by each person;

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter the Defendant) pays to the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) 27,372,003 won with interest rate of 20% per annum from January 15, 2014 to the date of complete payment.

Counterclaim: The plaintiff shall pay to the defendant 2,989,447 won with 15% interest per annum from the next day of service of a copy of the counterclaim of this case to the day of complete payment.

1. Facts of recognition;

A. On April 1, 2003, the Plaintiff retired on December 31, 2013 after being employed by the Defendant who conducts the architectural design business.

B. On January 7, 2008, the Plaintiff drafted an annual salary contract with the Defendant as follows.

1. Table 1. Basic annual salary 1. Basic rate: 2.1 million won x 12 months x 2.2.2 million won : overtime work hours are separately calculated and paid: Provided, That 21 hours per month shall be included in basic pay 3) retirement pay per month included in basic pay: 2. Allowances and ordinary wages 1. Payment per month included in basic pay shall be deemed to include legal allowances (long, night, holiday work. ...) and all items of our voluntary allowance (class, meal allowance. .... ..) and our voluntary allowance (class, meal allowance. ...). 2) Ordinary wages shall be the amount equivalent to 1/12 of the basic salary (year) 12. 3. The monthly payment and the monthly payment shall be the amount equivalent to 12/12 of the monthly payment, including the amount of retirement allowance and bonus, at the end of this month in the agreement between the employer and the employee.

C. Pursuant to the above annual salary contract, the Defendant paid monthly basic pay to the Plaintiff. The above basic pay is deemed to include the monthly overtime work 21 hours [see the proviso of Article 1(1) of the Annual Salary Labor Contract], and the basic pay was not reduced even if the actual 21 hours of overtime work were not paid, and overtime work was paid for 21 hours in excess of 21 hours by multiplying the said overtime work hours by the daily overtime hours, and the said amount of overtime work was calculated by uniformly dividing the basic pay by 270 hours. The Plaintiff’s basic pay was raised as KRW 2.3 million in 200,250,000,000 won in 201, and KRW 2.6 million in 2013.

D. From the Plaintiff’s retirement to October 6, 2014, the Defendant paid a total of KRW 11,80,000,000 as the name of unpaid benefits and retirement allowances. On October 8, 2014, the Plaintiff prepared and issued a written statement stating that “I will promise the Defendant not to demand any further additional amount as I have adjusted all of the salaries (including retirement allowances) sealed in Egypted to Egy death on part of October 8, 2014.” (hereinafter each of the instant statements) to the Defendant.

【Unsatisfy-founded facts, Eul evidence Nos. 1, 2, 3, Eul evidence No. 5-3, 4, the purport of the whole pleadings

2. Determination on the main claim

A. The plaintiff's assertion

The defendant is obligated to pay to the plaintiff a retirement allowance of 27,372,003 won and delay damages equivalent to 10 years and 9 months of the period of continuous employment.

The Plaintiff received KRW 11,800,000 from the Defendant after his retirement was not included in the retirement allowance, and the Defendant affixed a seal to the Defendant’s request for bringing the instant notes and affixing seals without confirming the phrase “sworn pay (including retirement allowances). As such, each of the instant notes was not concluded due to the lack of the agreement of declaration of intention, or was cancelled by the declaration of intention by mistake.

(b) Markets:

The plaintiff himself/herself recognizes the fact that the plaintiff has affixed and sealed the letter of this case. There is no evidence to acknowledge that the plaintiff has affixed and sealed the phrase "spawn pay (including retirement allowances)" in each letter of this case without verifying the phrase, or that the plaintiff has affixed and sealed it. Therefore, each letter of this case should be interpreted in accordance with its language and text, and it is evident that the plaintiff does not claim all accrued benefits, including retirement allowances, to the defendant. Thus, the defendant is not obliged to pay the retirement allowances to the plaintiff regardless of whether the actual unpaid retirement allowances remain.

Therefore, the plaintiff's assertion is without merit.

3. Judgment on the counterclaim

A. The defendant's assertion

1) Since the Plaintiff received retirement allowances from the Defendant in excess of the amount of retirement allowances, it must be returned in unjust enrichment. In other words, the amount of retirement allowances that the Plaintiff lawfully received is KRW 21,173,782, and the total amount of retirement allowances included in monthly pay is KRW 13,576,338, and the part corresponding to retirement allowances out of the amount additionally paid by the Defendant after the Plaintiff’s retirement is KRW 10,586,89,447 ( KRW 13,576,38 + KRW 10,586,89), and delay damages should be refunded to the Defendant as unjust enrichment.

2) The retirement allowances of KRW 13,576,338 included in the monthly salary claimed by the Defendant and KRW 21,173,782 included in the retirement allowances are very complicated and unique in the calculation method, and are examined in sequence below.

3) First of all, the ordinary wages to be established by the Commission shall be “monthly basic pay ± 270 hours.” 270 hours shall be deemed 228 hours in accordance with the standard contractual working hours set by the Labor Standards Act, and shall be calculated by adding 21 hours in the month and 21 hours in the month (28 hours + 21 hours in the month) to 21 hours in the month (21 hours in the calculation).

4) The war’s basic pay shall be determined as “the ordinary wage per time of an organization to be established 】 the statutory standard working hours prescribed in the Labor Standards Act ( weekly 44 hours per week until June 201) 】 226 hours per week, and the weekly 40 hours from July 201 to 209 hours per week).”

5) A. B. B. M. M.O. is calculated as “ordinary wage per hour 】 practical overtime hours 】 1.5” (as seen in the foregoing, the contractual overtime hours 21 hours were uniformly paid by including the basic wage, so even if the actual overtime work does not reach 21 hours, the Defendant calculated the overtime allowance as the actual overtime hours exceeding the statutory standard working hours regardless of the contractual working hours 21 hours per month when calculating retirement allowance included in the monthly wage.

6) From the monthly wage actually paid by the Defendant to the Plaintiff, the amount calculated by deducting the “basic rate of war reserve + overtime work allowances” is included in the monthly wage.

7) In calculating the average wage for the three months before the Plaintiff’s retirement, the retirement allowance included in the monthly wage calculated as above should be deducted. Accordingly, when applying the average wage for thirty days calculated accordingly, the lawful retirement allowance to be received by the Plaintiff is KRW 21,173,782.

(b) Markets:

1) Criteria for determination

If an employer and an employee agree to pay in advance a certain amount of retirement allowance with monthly or daily allowances, such agreement is null and void since an employee waives his/her right to retirement allowance, barring cases where the agreement is acknowledged as an interim payment of retirement allowance. As a result, an employer would not have the effect of payment of retirement allowance as a result of the agreement. Meanwhile, wages under the Labor Standards Act mean all kinds of money that an employer pays to an employee as remuneration for work, and that the employer bears the obligation to pay the same as a retirement allowance under the collective agreement, employment rules, wage rules, labor contract, and labor practice. However, if the agreement were to be paid separately from a monthly or daily allowance under the agreement while the employment relationship is in force, it cannot be said that the agreement is invalid as an employee’s payment of retirement allowance under the above agreement to the same effect as that of a retirement allowance under the condition that the employee would not receive a certain amount of retirement allowance under the same condition as that of the above 20-month retirement allowance under the premise that the aforementioned agreement would have been null and void (see Supreme Court en banc Decision 20060Da197, supra.).

2) As recognized earlier, the annual salary employment contract entered into between the Plaintiff and the Defendant is called “monthly payment included in the basic pay,” and there is no determination of the amount of retirement allowances included in the monthly wage. Moreover, since the said annual salary employment contract is a comprehensive wage agreement including allowances and bonuses suspected of validity, there is no basis for calculating the amount of retirement allowances. Even when the Defendant’s statement of monthly payment (Evidence B) made to the Plaintiff during the period of service, it is indicated that the monthly wage, the hourly wage, the extended amount, the extended period, the extended period, and the extended service allowance are only indicated in the number of the monthly wage, and that the amount of retirement allowances is uniformly indicated in the “monthly payment”, it is difficult to find out that the monthly wage included in the monthly wage amount.

3) The process of calculating the retirement amount included in the monthly salary, as alleged by the Defendant, is a method that can not be inferredly inferred in the annual salary contract or the monthly payment statement. The evidence No. 5-1 and No. 2 submitted by the Defendant to this court for the purpose of proving the above calculation process is not presented to the Plaintiff during the period of service as materials produced for the instant lawsuit ex post facto.

4) The above calculation process asserted by the Defendant is the arbitrary method that distorts the annual salary contract with the Labor Standards Act as follows.

① When calculating the ordinary wage per hour, the Defendant calculated the monthly standard working hours as 270 hours, and calculated the monthly standard working hours as 228 hours. Under the weekly standard working hours as set forth in the Labor Standards Act, the monthly standard working hours should be deemed 226 hours as seen earlier, and the monthly standard working hours should be 209 hours after the change into 40 hours per week. However, the Defendant continuously applied 228 hours. Although it can be understood to the extent that the aforementioned 270 hours include the prescribed overtime working hours 21 hours, it is difficult to understand that the premium rate 1.5 does not apply, and it is difficult to understand that the retirement allowance rate is 21 hours.

② The annual salary employment contract is deemed to include allowances and bonuses, and 21-hour overtime allowances in the basic pay. The Defendant calculated the basic pay as “hour ordinary wages x monthly standard working hours” in calculating the monthly salary. In particular, if the difference between “the basic pay ＋ the overtime work allowances x the monthly standard working hours” calculated by the Defendant and the monthly wage actually paid is retirement allowance, there is no way to explain how much the remainder of the annual salary contract for the Do substitute annual salary and the monthly wage paid by the Defendant.

5) Conclusion

In light of the aforementioned circumstances, the retirement allowance included in the monthly salary as claimed by the Defendant is not specified to the extent that it is distinguishable from the remaining wage, and is disadvantageous to the employees in light of the annual salary employment contract and the Labor Standards Act, and only took the form of an installment agreement to evade the payment of retirement allowance, and its substance is merely wages. Therefore, the Defendant’s claim for return of unjust enrichment premised on the existence of retirement allowance included in the monthly wage cannot be accepted.

4. Conclusion

Therefore, all of the plaintiff's principal claim and the defendant's counterclaim are dismissed. It is so decided as per Disposition.

Judges Jeon Chang-chul

1) 26 hours = 365 days ¡À7 days ¡À12 months per week + 44 hours per week + 8 hours per holiday).

Note 2) 209 hours = 365 days ¡± 7 days ¡À12 months per week + 40 hours per week + 8 hours per day).