The nature of retirement consolation benefits and effects of non-payment resolution of retirement consolation benefits for specific persons by resolution of the general meeting of shareholders.

In light of the provisions of Article 388 of the Commercial Act, the amount of retirement consolation benefits for a retired director is a kind of remuneration paid in consideration of the performance of duties in the period of office for the retired director, and if the amount of retirement consolation benefits was determined by the articles of incorporation or the resolution of the general meeting of shareholders pursuant to the above Act, even if a resolution was made to deprive or reduce the right to claim such remuneration for the retired director specified at the general meeting of shareholders, such resolution shall not be effective in light of

Article 388 of the Commercial Act

On November 22, 1977, 77Da1742 decided Nov. 22, 197 (Supreme Court Decision 11631, Supreme Court Decision 253No320 decided Nov. 20, 200, Supreme Court Gazette 577No10514 decided Nov. 22, 197)

Plaintiff

Defendant Stock Company

Seoul Central District Court (77Gahap128) in the first instance trial

Supreme Court Decision 77Da1742 Delivered on November 22, 1977

1. Revocation of the original judgment;

2. The defendant shall pay to the plaintiff 1,100,000 won with an annual interest rate of 5% from February 18, 197 to the full payment day.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

Judgment of the same purport as the order entry and provisional execution declaration

From February 26, 1974 to December 27, 1974, the plaintiff retired from office as executive director of the defendant company, and the fact that the plaintiff was paid 220,000 won with monthly salary (total amount of principal salary and job allowance) at the time of retirement, there is no dispute between the parties concerned, and the purport of Article 31 of the articles of incorporation of the defendant company is that Article 31 of the articles of incorporation of the defendant company shall be determined at the general meeting of shareholders as directors and auditors, and Article 2 of the rules on retirement allowance for officers was adopted at the temporary general meeting of shareholders of the defendant company held on March 22, 1972, and Article 2 of the rules on retirement allowance for officers provide that the retirement allowance for officers shall be paid with monthly salary at the time of continuous service (total amount of monthly salary and job allowance at the general meeting of shareholders) multiplied by the rate of payment of witness allowance for officers at the time of continuous service at the general meeting of shareholders.

원고는 피고회사에게 위 퇴직위로금규정에 따라 산출된 퇴직위로금의 지급을 구함에 대하여, 피고회사는 원고가 퇴직한 뒤 1975.2.26. 개최된 제9기 정기주주총회에서 원고에 대한 퇴직위로금은 지급하지 않기로 결의된 바 있으므로 원고의 청구에 응할 수 없다고 다투므로 생각건대, 이사의 퇴직위로금은 이사의 직에서 퇴임한 자에 대하여 그 재직중에 있어서의 직무잽행의 대가로서 지급되는 보수의 일종이며 상법 제388조 는 이사의 보수는 정관으로 정하거나 주주총회의 결의에 의하여 정한다고 규정하고 있음에 비추어 보아 위 법조에 근거하여 정관이나 주주총회의 결의로 퇴직위로금의 액이 결정되었다면 주주총회에서 특정된 퇴임한 이사에 대하여 그 보수청구권을 박탈하거나 이를 감액하는 결의를 하였다 하여도 이는 위 상법 제388조의 법리와 이사의 보수청구권의 성질상 그 효력이 없다고 할 것이며 피고회사의 임원퇴직위로금규정 제3조중 주주총회의 승인을 얻어 지급한다는 부분의 취지도 퇴직위로금 지급여부를 결정한다는 뜻으로는 볼 수 없고 다만 피고회사에 있어서 임원의 퇴직위로금의 지급시기와 방법등을 규제하려는 내부적인 절차를 규정한 것이라고 해석함이 타당하다.

If so, as argued by the Defendant Company, even if the general meeting of shareholders decided not to pay retirement consolation benefits to the Plaintiff, its validity cannot be recognized. Therefore, the Defendant Company is obligated to pay retirement consolation benefits calculated in accordance with the rules of retirement allowances for officers to the Plaintiff.

Therefore, according to Gap evidence No. 1, the amount of retirement consolation benefits shall be calculated from the date of his/her inauguration to the date of his/her retirement or death, according to Article 3 of the retirement consolation benefits rules.

When there is a fraction in the calculation of the number of years of continuous service, it shall be one year for not less than six months and less than six months shall be calculated on a monthly basis. The plaintiff has worked for about 10 months as an executive director of the defendant company and has received about 220,000 won a month as remuneration at the time of retirement. Therefore, if the plaintiff's retirement consolation benefits are calculated on the basis of the above, it is obvious that it is calculated that it is 1,100,000 won (220,000 won x 5) which is remuneration for five months of the year of continuous service as a director in accordance with the payment rate table of the retirement consolation benefits for executive officers.

Therefore, the Defendant Company is obligated to pay to the Plaintiff the damages for delay by the rate of 5% per annum of the Civil Procedure Act from February 18, 1977 to the full payment date on the record that it is obvious that it is the next day from February 18, 1977 to the date when the Plaintiff’s assertion is made. Thus, the Plaintiff’s claim of this case seeking the payment of the above amount should be accepted with merit. Since the original judgment rejected the Plaintiff’s claim with different views, the Defendant’s appeal accepted the Defendant’s appeal and accepted the Plaintiff’s claim, and the judgment is to be revoked with respect to the burden of litigation costs and the declaration of provisional execution, by applying Articles 89, 96 and Article 3 of the Act on Temporary Measures for Civil Procedure, Article 199

Judges Osungsung(Presiding Judge)