Plaintiff (Counterclaim Defendant) (Law Firm A&C, Attorneys Hong Hong-hoon et al., Counsel for defendant-appellant)

Hanyang Engineering Co., Ltd.

November 8, 2017

Seoul Northern District Court Decision 2016Da31241 (main office), 2016Da34608 (Counterclaim) Decided May 10, 2017

1. All appeals filed by the Plaintiff (Counterclaim Defendant) against the principal lawsuit and the counterclaim by the Defendant (Counterclaim Plaintiff) are dismissed.

2. The costs of appeal shall be borne by each party.

[Claim]

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter the Defendant) pays to the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) 27,372,003 won with interest rate of 20% per annum from January 15, 2014 to the date of complete payment.

Counterclaim: The plaintiff shall pay to the defendant 79,127 won and the amount calculated at the rate of 15% per annum from the next day of the service of a copy of the counterclaim of this case to the day of full payment (the defendant has reduced the claim of the counterclaim of this court as above).

【Purpose of Appeal】

The part concerning the principal lawsuit in the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 27,372,003 won with 20% interest per annum from January 15, 2014 to the day of full payment.

The part concerning the counterclaim in the judgment of the court of first instance is revoked. The plaintiff shall pay to the defendant 79,127 won and 15% interest per annum from the day following the delivery of a copy of the counterclaim in this case to the day of complete payment (the defendant reduced the claim for counterclaim in this court, and accordingly reduced the purport of appeal within the scope of the claim).

1. Quotation of the first instance judgment

The reasoning of this court is as follows, except for a dismissal or addition as follows, and therefore, it is identical to the reasoning of the judgment of the first instance.

2. Parts used or added;

○ The part of the judgment of the first instance is deleted from the part of the first instance to the 6th "calculated" of the first instance judgment.

○ On the fourth side of the first instance judgment, the following contents are added at the end of the first instance judgment.

In addition, each of the instant statements is prepared in the sense of confirming that the Plaintiff gave up retirement allowances in advance after the Plaintiff’s retirement, and thus, constitutes a waiver of the right to claim retirement allowances in fact, there is no effect of the Plaintiff’s expression of intent in the respective

○ 4th of the first instance judgment, the fourth of the first instance judgment is followed as follows.

In addition, each of the instant statements was prepared on October 8, 2014, when several months from the date of retirement of the Plaintiff, and that the Defendant paid a total of KRW 11.8 million after the Plaintiff’s retirement to October 6, 2014 under the name of unpaid benefits and retirement allowances, etc., as seen earlier. In full view of the above facts and the developments leading up to the preparation of the instant notes, etc., it is difficult to deem that the Plaintiff waived the right to claim a retirement allowance through the instant notes, and rather, it is reasonable to deem that the Plaintiff renounced it after the Plaintiff’s retirement claim occurred. Accordingly, the first Plaintiff’s assertion on a different premise is without merit.”

○ The portions from No. 4 of the first instance judgment to No. 5 at the lower end of No. 12 to No. 5 are as follows.

“1) The Plaintiff received retirement allowances from the Defendant and thus ought to be returned in unjust enrichment. In other words, the amount of retirement allowances that the Plaintiff lawfully required to receive is KRW 21,173,782, and the total amount of retirement allowances included in monthly pay is KRW 13,576,338, and the part corresponding to retirement allowances out of the amount additionally paid by the Defendant after the Plaintiff’s retirement is KRW 10,586,891, and the Plaintiff must return KRW 2,989,447 to the Defendant as unjust enrichment. However, if the Plaintiff deducts KRW 2,910,320, which should be additionally paid to the Plaintiff as overtime allowances from the above unjust enrichment, the Plaintiff must return to the Defendant 79,127 won [=(13,576,338 won + 10,586,891 won + 10,582 won -21,73,782 won -2,910] and delay damages.

2) The retirement allowances of KRW 13,576,338 included in the monthly salary claimed by the Defendant and KRW 21,173,782 included in the lawful calculation shall be examined in order to review the calculation method, as the method is complicated and unique.

A) The retirement allowances included in the monthly pay claimed by the Defendant are the amount calculated by subtracting, from the basic monthly pay of an organization for which the Defendant claims are made, the monthly ordinary wage [1 week per hour) x the statutory standard working hours prescribed under the Labor Standards Act (2) x the weekly average working hours (3) 226 hours per week, from July 201 to July 201 by applying the weekly 40 hours system) / the amount calculated by subtracting, from the amount calculated by deducting, the amount of overtime work allowances settled for the time after the end of the year (the Defendant’s assertion = - The amount of retirement allowances made after the end of the year).

B) On the other hand, the Defendant was unable to pay KRW 2,910,320 of the allowances corresponding to “hourly ordinary wages 】 actual overtime hours x 1.5” for 21 hours, and in the case of exceeding 21 hours, “hourly ordinary wages 】 actual overtime hours 】 1” for the part in which the Plaintiff had worked in excess of 21 hours (On the other hand, the Defendant was unable to pay KRW 2,910,320 of the allowances corresponding to “hourly ordinary wages 】 actual overtime hours 】 0.5, and as seen earlier, reduced the claim for the amount equivalent

C) In the event that the Plaintiff worked in excess of 21 hours, the amount equivalent thereto was settled after a reduction was made (the amount equivalent thereto) and the amount reduced was increased to retirement allowances, and the Plaintiff’s basic salary was maintained at a certain level.

D) When calculating the average wage for the three months before the Plaintiff’s retirement, the retirement allowance included in the monthly wage calculated as above should be deducted. Accordingly, when applying the average wage for thirty days calculated accordingly, the lawful retirement allowance to be received by the Plaintiff is KRW 21,173,782;

Pursuant to the third sentence at the bottom of the 7th judgment of the court of first instance, the “as shown below, 1, 2 as above” is turned into “as listed below.”

○ The lower part of the first to 8th page 12 at the lower part of the first instance judgment is as follows.

① The Defendant asserts that the “monthly ordinary wage” is calculated on the basis of the “hour ordinary wage”, and uniformly calculated the monthly basic wage by dividing it by 270 hours per hour into 270 hours, and the grounds therefor are unclear (under the weekly standard working hours under the 44-hour system prescribed by the Labor Standards Act, the monthly standard working hours shall be deemed 226 hours as seen earlier, and after the changing into 40-hour per week, the Defendant shall continue to apply 270 hours. In addition, Article 2 of the annual salary work contract provides that the “ordinary wage” shall be the amount equivalent to 12/12 of the basic wage (1-1) and shall be the amount equivalent to 1/12 of the monthly standard working hours. In light of this, the Defendant’s calculation method is difficult.

② With respect to the method of calculating overtime work allowances, the Defendant: (a) calculated the part exceeding 21 hours as “hour ordinary wages 】 actual overtime work hours 】 1.5”; and (b) calculated as “hour ordinary wages 】 actual overtime work hours 】 1”; and (c) if the amount exceeds 21 hours, it is unclear the grounds for reduction.

③ In the event that the Plaintiff’s overtime work is less than 21 hours a month, the Defendant claimed that the monthly amount was deducted from the monthly amount, but the amount deducted was additionally paid to the Plaintiff. However, there is no ground to support the method of calculating retirement allowances (as seen earlier, the monthly amount of retirement pay is uniformly stated in the monthly payment statement). According to the Defendant’s assertion, the amount of the pre-paid retirement pay is significantly changed depending on the monthly amount of overtime work, and such calculation method is very exceptional.

④ Under the Defendant’s calculation method, there is no way to explain how much the rest of the annual salary labor contract and the rest of the bonus are available under the annual salary labor contract.

3. Conclusion

Thus, all of the plaintiff's main claim of this case and the defendant's counterclaim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and all of the plaintiff's appeal against the main claim and appeal against the defendant's counterclaim are dismissed as it is without merit.

Judges Oduk-gu (Presiding Judge)

1) The ordinary wage per hour is “monthly basic pay ± 270 hours”.

Note 2) 26 hours = 365 days ¡À 7 days ¡À12 months per week + 44 hours per week + 8 hours per holiday).

3) 209 hours = 365 days ¡± 7 days ¡À12 months per week + 40 hours per week + 8 hours per day).