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The judgment below
The part against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. If the employer and the employee agreed to pay in advance a certain amount of money with the monthly pay or daily pay paid by the employee (hereinafter “retirement Allowance installment agreement”), the agreement is null and void as it gives up the employee’s right to claim a retirement allowance at the time of the final retirement unless it is acknowledged as an interim payment of retirement pay, and thus, it violates the mandatory law, and accordingly, the employer pays in advance the employee the amount in the name of the retirement allowance according to the agreement on the division of retirement
There is no validity of retirement allowance payment.
Wages under the Labor Standards Act refer to all kinds of money that an employer pays to an employee in compensation for his/her work, which means that the employer bears the obligation to pay in accordance with collective agreements, rules of employment, wage rules, employment contracts, labor practices, etc.
However, even though the amount of money in the name of a retirement allowance is paid separately from the monthly salary or daily wage under an agreement on the division of retirement allowances during the continuance of a labor relationship, if the agreement on the division of retirement allowances is null and void and void, it does not constitute “wages paid for the payment of retirement allowances” under the above agreement. Therefore, it is reasonable from the perspective of fairness to view that an employer should return to an employer the money in the name of a retirement allowance received by an employee as unjust enrichment, while an employee suffered losses equivalent to the above amount by paying the money in the name of a retirement allowance to an employee without any legal cause.
(See Supreme Court en banc Decision 2007Da90760 Decided May 20, 2010). However, considering the legislative intent of the retirement allowance system as mandatory law, the above legal principle is between the employer and the employee.