(영문) 인천지방법원 2018.7.10.선고 2018구단50359 판결

A. From April 1, 2017, a new Lackers Co., Ltd. (hereinafter referred to as “new Lackers”) introduced wage peak system through the process of revising the rules of employment, etc., and reduced 20% of wages by agreement with the Plaintiff, which is an employee. Upon the Plaintiff’s application, the Defendant paid 2,700,000 won of the quarterly subsidy (a certain portion of subsidy for an amount exceeding 10% of the wage reduction rate), and 457,400 won of the quarterly subsidy on July 2, 2017, respectively.

B. On January 2, 2018, the Plaintiff filed an application with the Defendant for the quarterly subsidy in 2017 by increasing the rate of wage reduction from 20% to 30%, and the Defendant explained that the Plaintiff would be entitled to the Plaintiff’s full amount of the reduced wage of 20%, and subsequently raised an objection with the knowledge that the Plaintiff could not receive the reduced wage of 10% from the quarter of 2017, the reduced wage shall be 30% from the quarter of 2017, and the remainder shall be 10% from the new retirement allowance form.”

C. Accordingly, on January 30, 2018, on the premise that the Plaintiff’s wage is not actually reduced, the Defendant made a decision on the site pay for the wage peak system (hereinafter “instant disposition”) against the Plaintiff on the ground that the Plaintiff’s wage is not subject to the subsidy for the wage peak system.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 20 (1) 4 of the Income Tax Act provides that the calculation of the difference between the fixed wage and the wage for the pertinent year shall be based on earned income under Article 20 (1) of the Income Tax Act. Article 20 (1) 4 of the Income Tax Act provides that "income received by retirement and not included in retirement income" is only deemed as earned income, but it cannot be deemed as earned income included in the calculation of the subsidy because it is clearly distinguishable between earned income and retirement income, such as where retirement allowances are not deemed as earned income and retirement income. Thus, it cannot be deemed that the payment of 10% reduced amount as retirement allowance is included in the calculation of the subsidy. The instant disposition that deemed that 10% of the retirement allowance paid by the Defendant is included in the wage for the pertinent year is unlawful, and even if the retirement

B. Relevant statutes and regulations

Article 23 of the Employment Insurance Act may, as prescribed by Presidential Decree, provide necessary assistance to employers who hire the aged, etc. or take other measures necessary for their employment security or to workers involved in such employment security, in order to promote the employment of those whose ordinary conditions of the labor market, such as the aged, etc., especially difficult (hereinafter referred to as "seniors, etc.")

Article 35 (Restriction, etc. on Support due to Cheating) (1) The Minister of Employment and Labor shall not grant any person who has received, or intends to receive, support for employment security and vocational skills development projects under this Chapter by fraud or other improper means, the unpaid amount of the relevant subsidy or the subsidy he/she intends to receive, restrict the payment of the subsidy within the extent of one year, as prescribed by Presidential Decree, and order him/her to return the subsidy received

(1) In any of the following cases, the Minister of Employment and Labor shall, pursuant to Article 23 of the Enforcement Decree of the Employment Insurance Act, grant the wage peak system to a worker: Provided, That in cases falling under subparagraph 2, the wage peak system shall also be granted to a business owner who has extended the retirement age to at least 60 or to below the age of 56 but less than 60;

(2) A subsidy for wage peak system under paragraph (1) shall be granted to a person employed by the relevant business owner who has continuously worked for at least 18 months and has been reduced at a rate specified in the following subparagraphs or higher (excluding where the wage for the relevant year is at least the amount publicly announced by the Minister of Employment and Labor) in comparison with the wage paid (referring to the wage for the year immediately preceding the year in which the wage is reduced for the first time by applying the

1. In cases falling under paragraph (1) 1: The ratio classified as follows according to the extended retirement age: Provided, That it shall be 10/100 for any business that has less than 300 full-time employees:

(3) The subsidies for wage peak system referred to in paragraph (1) shall be the amount publicly announced by the Minister of Employment and Labor in consideration of the difference between the worker's wage and the wage in the relevant year, the rate of increase of wage, the increased amount of labor costs by the business owner due to the

Article 47 (Retirement Pay) of the Rules of Employment for the Bank of Korea (Retirement Pay)

1. Where an employee retires after having worked for not less than one year, the company may pay the retirement allowance equivalent to his average wages for 1 year by extending the retirement allowance for not more than 14 days;

2. Any company may introduce a retirement pension plan with the consent of the majority of its employees in lieu of the payment of retirement allowances under paragraph (1) in accordance with Article 4 of the Guarantee of Workers' Retirement Benefits Act

C. Determination

According to Article 28 of the Enforcement Decree of the Employment Insurance Act, the wage peak system guarantees employment by means of extending retirement age instead of reducing wage by adjusting the number of working hours, etc. based on a certain age, and the subsidy shall be reduced by at least 10% by applying the wage peak system. With respect to an amount exceeding 10% of the wage reduction rate, the subsidy shall be paid within the limit of KRW 90,000,000 per month, quarterly 270,000 per year, and KRW 10,80,000 per year. On the other hand, even if the rules of employment applied to the former employee, there is no provision that the wage wage system should be paid specially to the employee subject to the wage

In light of these circumstances, as long as the Plaintiff’s 10% portion of the monthly salary that the Plaintiff intended to receive at the time of retirement cannot be deemed as retirement allowance, and in fact, it cannot be included in the amount reduced by 10% that the Plaintiff agreed to receive at the time of retirement. Therefore, the Defendant’s determination that the Plaintiff’s wage reduction rate cannot be deemed as 30% is reasonable.

On the other hand, even if the plaintiff's monthly wage is deducted from 30% reduction on the nominal 30%, 20% is reduced, and it still exceeds 10%, so there is a question whether it is not necessary to pay the wage wage corresponding to that portion, since it still exceeds 10%.

However, Article 35(1) of the Employment Insurance Act provides that "Any person who intends to obtain subsidies by fraudulent or other illegal means may not be granted subsidies that he/she intends to receive by fraudulent or other illegal means." Thus, as long as the plaintiff intends to additionally receive subsidies by deceiving the rate of wage reduction in collusion with new ones

Even if the wage reduction rate substantially exceeds 10%, it cannot be viewed that the defendant's disposition that did not pay the part is unfair.

Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.