Where an employer agrees to pay a certain amount of money as retirement allowance under the name of the employer to the monthly wage paid by the employee, whether it is effective as retirement allowance payment under Article 34(1) of the former Labor Standards Act (negative)

Articles 34(1) and 113 subparag. 1 of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005)

Supreme Court Decision 96Da24699 delivered on March 24, 1998 (Gong1998Sang, 1131) Supreme Court Decision 2002Do211 Delivered on July 12, 2002 (Gong2002Ha, 2008)

Defendant

Defendant

Seoul Western District Court Decision 2006No71 decided May 23, 2006

The appeal is dismissed.

We examine the grounds of appeal.

1. Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005; hereinafter the same) provides that a retirement allowance shall be provided to the retired employee, and as a matter of principle, there is no room for a duty of payment of retirement allowances during the existence of a labor contract, since the retirement allowance arises only when the termination of a labor contract is required as retirement. Thus, even if an employer agreed to pay a certain amount of money under the name of the retirement allowance paid every month between the employer and the employee, it is not effective as a retirement allowance payment under Article 34(1) of the Labor Standards Act (see Supreme Court Decisions 96Da24699, Mar. 24, 1998; 2002Do22111, Jul. 12, 2002).

The court below acknowledged the facts as stated in its reasoning based on the employment evidence, and judged that there was an agreement between the defendant and the non-indicted to pay retirement allowances in the monthly salary, and even if there was such an agreement, it is not effective as retirement allowance payment. In light of the records and the above legal principles, the above fact-finding and decision of the court below is just and acceptable, and there was no error in the misapprehension of legal principles as to the payment of retirement allowances under the Labor Standards Act, as otherwise alleged in the grounds of appeal.

In addition, insofar as the above agreement itself cannot be acknowledged, the argument in the grounds of appeal that it is effective as an agreement on interim settlement of retirement allowances under Article 34(3) of the Labor Standards Act cannot be accepted.

Ultimately, the argument in the grounds of appeal is without merit.

2. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)