2015Na8737 Retirement Pension

A person shall be appointed.

Sungnam-si

Law Firm (LLC) 00

Attorney 000

B Bank, Inc.

Seoul

Representative Director 000

Manager 000

Law Firm 00

Attorney 000

Seoul Central District Court Decision 2014Gahap21538 Decided February 6, 2015

June 11, 2015

July 23, 2015

1. Of the judgment of the first instance court, KRW 113, 706, 331 against the Plaintiff and the Plaintiff on April 9, 2014

From July 23, 2015 to July 23, 2015, 5% per annum and 20% per annum from the following day to the day of full payment.

For the cancellation of the part against the defendant ordering payment in excess of the

The plaintiff's claim corresponding to this is dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be six minutes, which shall be borne by the plaintiff, while the remainder shall be borne by the defendant.

1. Purport of claim

The defendant's claim of this case against the plaintiff 657, 228, 218 won and the plaintiff's claim of this case from April 9, 2014

Until the delivery date of a copy of the application for reduction, 5% per annum and 20% per annum from the following day to the date of complete payment.

The payment of each proportion of money shall be made.

2. Purport of appeal

In the judgment of the first instance court against the defendant, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation

The dismissal is dismissed.

1. Quotation of judgment of the first instance;

The court's explanation on the instant case is in accordance with 6th to 10th to 6th to 6th to 6th to 6th to 10

Part 8 of the reasoning of the judgment of the court of first instance is the same with that of the court of first instance, except in writing 8 by:

It is accepted by the main sentence of Article 420 of the Civil Procedure Act as it is.

2. Parts used for repair;

3. Judgment on the defendant's defense of set-off

A. Defendant’s defense and the gist of the Plaintiff’s defense

1) The Defendant’s instant retirement benefit claim based on the instant loan claim as an automatic claim

set-off, even if the instant retirement benefit claim constitutes a claim prohibiting seizure, this set-off

A set-off may be made according to the special agreement for set-off of the basic terms and conditions for credit transactions to which a loan claim applies.

this defense shall be the second time.

2) As to this, the Plaintiff transferred the instant retirement benefit claim pursuant to Article 7(1) of the Retirement Benefits Act.

set-off by the defendant against the claim for retirement benefits of this case, since seizure is prohibited against the division.

section 246(1)4 or 5 of the Civil Execution Act, or in accordance with section 246(1)4 or

1/2 of the retirement benefit claim of this case is prohibited from seizure. Thus, 1/2 of the retirement benefit claim of this case is prohibited.

The set-off by the defendant against which the part against which the loan claim was made is prohibited, and the loan claim of this case is applied.

bank transaction basic terms and conditions shall be set-off for the loss of the benefit of time.

clause only does not constitute a set-off special agreement, and even if it constitutes a set-off special agreement, unfair terms and conditions;

b) the purport that the invalidation is null and void.

B. Determination

1) Whether the instant retirement benefit claim constitutes a prohibited claim against transfer (Seizure) under the Retirement Benefits Act

(A) the obligor’s monetary claim against the third obligor is prohibited from being transferred under the law.

In the case of seizure, seizure shall not be made, unless there are special circumstances. Thus, seizure shall not be made.

However, Article 7(1) of the Retirement Benefits Act provides that "the right to receive benefits under the retirement pension plan shall be entitled to receive benefits."

No transfer or offer as a security shall be made or offered as a retirement pension under the Retirement Benefits Act.

Right shall be deemed prohibited from being seized in full (Supreme Court Decision 2013 Decided January 23, 2014).

C. Meanwhile, Article 497 of the Civil Act provides that “if a claim is not available for seizure, it shall not be seized.”

The obligor cannot set up against the obligee by set-off. Accordingly, the obligor cannot set up against the obligee.

set-off against claims for retirement pension shall be prohibited in full.

B) However, the Retirement Benefits Act is an employee under Article 2(1)1 of the Labor Standards Act.

Article 2 subparag. 1, Article 3 of the Retirement Benefits Act) and Article 2(1)1 of the Labor Standards Act

Workers prescribed in subparagraph shall engage in business or place of business for the purpose of wages regardless of the type of occupation.

corporation, and whether it is a person who provides labor or not, regardless of the form of the contract,

Whether or not a labor has been provided to an employer in a subordinate relationship with a qualitative purpose of wages

Accordingly, determination must be made (see Supreme Court Decision 2012Do6537, Sept. 26, 2013, etc.). On the other hand, states

The representative director of the subsidiary company shall represent the company externally and perform the affairs of the company internally.

Since the representative director has the authority to do so, the status as the representative director is merely a formal and nominal one, and thus, actual competition.

Provision of labor under specific, individual command and supervision by a person, and the subject of work itself;

Unless there are special circumstances, such as having received remuneration in nature, the Labor Standards Act

Workers are not workers (see Supreme Court Decision 2012Da98720 decided May 29, 2014, etc.).

C) In light of the above legal principles, as seen earlier, the representative of the non-party company

In fact, the status as the representative director is merely a formal or nominal one.

Workers provided labor under specific and individual command and supervision from managers and subject to work itself;

evidence to prove the special circumstances, such as that the person was paid the remuneration due to the nature of the material nature;

In light of the evidence No. 5, the plaintiff is the representative director of the non-party company and the maximum amount of the plaintiff.

As a shareholder, it appears that the plaintiff will actually operate the non-party company, the application of the Retirement Benefits Act to the plaintiff

No employee shall be deemed an employee under the Labor Standards Act.

D) Therefore, the Plaintiff’s instant claim is prohibited from being transferred under the Retirement Benefits Act.

shall not constitute a retirement pension claim.

2) Whether the instant retirement benefit claim constitutes a claim prohibited from seizure under the Civil Execution Act

A) Article 246(1)4 of the Civil Execution Act provides that “The pay, pension, salary, bonus, retirement pension, or retirement pension”:

An amount equivalent to 1/2 of the wage claim of similar nature shall not be subject to attachment.

(1) The Presidential Decree takes into account the minimum cost of living under the National Basic Living Security Act;

The Presidential Decree in consideration of the living expenses of a standard household if the amount falls short of the amount determined;

In case of exceeding the amounts prescribed by the Presidential Decree, such amounts shall be the amounts prescribed by the Presidential Decree concerned respectively.

under subsection (5) of the same paragraph "one-half of retirement allowances or other wage claims of similar nature"

section 497 of the Civil Code provides that an amount of money shall not be seized. The Civil Code section 497 provides that a claim shall not be seized.

the debtor cannot set up against the creditor by set-off if such set-off is not applicable.

Therefore, a retirement pension and a retirement allowance under Article 246(1)4 and 5 of the Civil Execution Act are claims, such as retirement pension and retirement allowances.

set-off against such claims shall be for the portion exceeding 1/2 of the claims, such as retirement pension, retirement allowance, etc.

only is permitted.

B) In full view of the purport of the entire pleadings, recognition of evidence Nos. 1, 2, and 5 as follows:

In light of the following circumstances, retirement benefit claim of this case is prohibited under the Civil Execution Act.

Since it cannot be viewed as the right, the defendant's defense of set-off is justified.

(1) Wages, pensions, salaries, bonuses, retirements under Article 246 (1) 4 and 5 of the Civil Execution Act;

Attachment of 1/2 of wage claims that serve as the basis for survival of wage income earners, such as a pension and retirement allowances;

The prohibition shall be taken into account in terms of social policy to ensure the right of a worker or a paid citizen to live.

Since the protection of the debtor and the exceptional provision restricting the exercise of the creditor's property right is an interpretation

In addition, this cannot be expanded and interpreted.

(2) The former Civil Procedure Act, which provides the basis under Article 246 (1) 4 and 5 of the Civil Execution Act.

(Law No. 547 of April 4, 1960) Article 579 of the Act provides that "the prohibition of seizure shall be limited as "workers' labor."

amount not exceeding 1/2 of the remuneration received under this paragraph or the assistance fee of the bereaved family;

and thereafter Article 579 of the former Civil Procedure Act (wholly amended by Act No. 4201 of January 13, 1990)

of this title, the claims to be prohibited from seizure include pay, pension, salary, bonus, retirement allowance, retirement pension, retirement pension and other similar nature.

The amount equivalent to a half of the wage claim held by it is revised to the extent that it is prescribed by the Civil Execution Act.

In light of the legislative intent and history mentioned above, Article 246(1)4 and 5 of the Civil Execution Act

It should be viewed as a provision that is premised on workers' remuneration for labor.

③ According to the rules of final benefit retirement pension for the non-party company, the final benefit type retirement pension system is as follows.

The purpose of the Do is to contribute to the stable livelihood security of workers (Article 1), the representative director, etc.

Notwithstanding the position in the business, a person who provides labor and receives wages shall be eligible to join the business.

(Article 8), the period of providing labor shall be the period of subscription (Article 9), and the termination of the employment relationship with the employer.

(Article 11) In the event that the qualification for subscription is lost (Article 11), the final benefit type of the non-party company shall be retired.

The gold system is a system premised on workers.

(4) Claims for benefits, the seizure of which is prohibited under Article 246 (1) 4 and 5 of the Civil Execution Act.

employment of an employer regardless of whether the wage claim is public law, private law, or private;

for intellectual or physical labor (including services) provided to the employer under the relationship; or

other income received by employer, etc. in accordance with a similar duty relationship;

Remuneration paid in return for the management of delegated affairs (medical fees, attorney fees) shall not be applicable thereto.

in this chapter.

(5) Directors, etc. of a stock company shall be entrusted with certain business affairs by the company.

Since the employer's direction and supervision, the employer provides certain labor and receives prescribed wages.

The Labor Standards Act is not in an employment relationship, and therefore a certain amount of remuneration shall also be paid.

the corporation's regulations, and the corporation's regulations, shall not pay a retirement allowance to officers, such as directors.

(2) The retirement allowance shall not be the retirement allowance under the Labor Standards Act, but the delegated person in office.

It is merely a remuneration paid for the performance of duties (Supreme Court Decision 2002Da202 delivered on September 26, 2003).

In principle, a director of a stock company cannot be deemed as a claim prohibiting seizure. However, a director of a stock company may not be deemed as a claim prohibiting seizure.

Even if such status or name is formal, nominal, and actually worked every day.

under the direction and supervision of the representative director or user with the executive authority, and provides certain labor;

in a relationship of remuneration, or other than handling affairs delegated by the Company;

A fixed amount of remuneration for taking charge of and payment of labor under the direction and supervision of the representative director, etc.

If such officer has been granted, such officer shall be an employee under the Labor Standards Act (Supreme Court Decision 200

In such cases, an exceptional case involving a stock company shall be subject to an objection by the said company

The fact that private remuneration can only be the claim for prohibition of seizure.

1. The shares of the non-party company since 2002 are owned by the Plaintiff and the Plaintiff’s father (the father)

15. 42% (as of June 10, 2008) to 60.1% (as of December 31, 2002) as being the largest shareholder, above.

The plaintiff controlled the company, and on October 1, 2002, the plaintiff was appointed as the representative director of the non-party company and was appointed on October 1, 2013.

2. 1. A person who has run a non-party company for at least 10 years until January 1.

(7) Labor income subject to taxation under the Income Tax Act shall be worked in a non-independent position by workers, etc.

(1) The amount of such earned income shall be determined by taking into account tax convenience, etc.

Income tax is imposed as earned income under the Income Tax Act because it is not limited to employees' wage claims.

on the sole ground that it cannot be viewed as a benefit claim prohibited from seizure.

3) Offset

A) According to the facts based on the facts, the loans of this case reached the due date on July 2, 2008, and the following:

A claim for retirement benefits of this case was filed on February 1, 2013, on which the Plaintiff’s retirement from the non-party company was affixed, and accordingly became effective.

As of February 15, 2013, the day after 14th day from the day of maturity, the day after February 15, 2013 shall be deemed to have reached the due date, 4) the above two claims.

On February 15, 2013, both of them reached the due date and were in offset.

B) Also, on March 31, 2014, the Defendant expressed his/her intent to offset the above two claims against the equal amount.

The facts stated above are as follows.

C) Therefore, the Plaintiff’s retirement benefit claim 657, 228, 218 Won 5) is an offset date.

The principal and interest of the Defendant’s instant loan claims, which was retroactively set off on February 15, 2013, up to the date of the offset.

543, 521, 887 Won6) It is deemed that the defendant was set-off and extinguished within the extent of equal amount. Accordingly, the defendant was therefore set-off and extinguished.

The above offset defense is justified within the extent of the above recognition.

4) Sub-decisions

Therefore, the Defendant’s retirement benefits remaining after offsetting the Plaintiff as above.

113, 706, 331 won ( = 657, 228, 218 - 543, 521, 887 won) and any of them after the due date.

As sought by the Plaintiff, the existence or scope of the Defendant’s obligation from April 9, 2014

Until July 23, 2015, the date of adjudication of the court of appeal, which is deemed reasonable to dispute as to the issue of whether it is a civil petition;

5% per annum prescribed by the Act, and the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

The obligation to pay damages for delay calculated at the rate of 20% per annum.

4. Judgment on the defendant's defense of deposit

Since the defendant deposited KRW 14,091,867 out of the retirement benefits of this case, the above amount is equal to the above amount.

The retirement benefit claim was extinguished.

In full view of the evidence No. 10 in the statement No. 10, the defendant's retirement of this case

7) Grounds under section 248(1) of the Civil Execution Act for concurrent seizure of a benefit claim

Busan District Court's Dong Branch of the District Court in 2014 No. 721, 14,091, 867 won deposited in enforcement

The plaintiff's dividends are distributed to the creditors by holding dividends for the above execution deposits.

8) The defendant's above deposit defense, as there is no evidence to prove that the distribution procedure has been completed.

shall not be accepted.

3. Conclusion

If so, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claim is accepted.

The court of first instance, which has partially different conclusions, shall be dismissed as it has no reason to do so, and the court of first instance which has partially different conclusions

Since the part against the defendant ordering payment in excess of the money is unfair, the cancellation part shall be cancelled and cancelled.

(1) The plaintiff's claim shall be dismissed, and the defendant's remaining appeal shall be dismissed as it is without merit.

D. The decision shall be delivered with the order of the court.

Judges Lee Jae-dae

Judge Choi Jin

Judges Lee Jong-soo

4) Article 14(1) of the Regulations on the Final Benefit Retirement Pension of Non-Party Company provides that “The grounds for the payment of benefits shall be for the membership under Article 11, such as retirement.

section 15(1) of the above Code provides that "the employer shall be disqualified within 14 days from the date on which the cause for payment of benefits occurred."

Since the payment of benefits must be made by the Plaintiff, the Plaintiff retired from the non-party company and lost its eligibility to join the company.

2. 1. It is deemed that the instant retirement benefit claim has been realized, and on February 15, 2013, the date 14th day from that date, the foregoing claim was changed.

It will be said that it will be raised.

5) Since the Plaintiff claimed for the payment of damages for delay from April 9, 2014, which was after the date of the offset ( February 15, 2013), the said offset against the Plaintiff. Thus, the said offset against the Plaintiff’s claim is filed.

Damages for delay against the retirement benefits of this case by the date of the award are not considered.

6) 543, 521, 887 won = 528, 322, 269 won + 5, 447, 342 won ( = 508, 511, 552 won X 17% per x 17% from December 20, 2012 to January 11, 2013)

J 23/365 days + 9, 752, 276 won ( = 508, 511, 552 X 20% per X 10% from January 12, 2013 to February 15, 2013)

35 days / 365 days, but less than Won

7) However, the defendant appears to have expressed the retirement benefit claim of this case in a deposit form "the deposit claim of this case".

8) Although the Defendant did not deposit the full amount of KRW 113,706, 331 of the retirement benefits of this case remaining after set-off as above, the enforcement officer did not deposit it.

The distribution of dividends shall be made for the deposited money after the deposit is accepted, even if the effect of the deposit is not recognized.

When the vehicle is terminated, the repayment of the money deposited and distributed shall be effective (Supreme Court Decision 2012Da2012 Decided July 24, 2014).

See, 91385, et al.)