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The defendant's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is as follows: (a) upon the worker E’s request, the Defendant paid the E in installments a total of KRW 4.6 million per month as retirement allowance; and (b) the retirement allowance specified in the facts charged has already been paid in full; (c) so, the judgment of the court below which found the Defendant guilty of the facts charged in this case is erroneous
Even if the court below's punishment (700,000 won) is too unreasonable.
2. Determination
A. If the employer and the employee agreed to pay in advance a certain amount of money with the monthly salary or daily allowance paid by the employee as retirement allowance (hereinafter “retirement payment agreement”), the agreement is null and void in violation of Article 8 of the Act on the Guarantee of Retirement Benefits of Workers, since the employee waives his/her right to claim a retirement allowance at the time of the final retirement in advance, unless it is acknowledged as an interim settlement of the retirement allowance under the main sentence of Article 8(2) of the same Act, and thus, it is invalid in violation of Article 8 of the same Act. As a result, even if the employer paid in advance the employee the money in the name of the retirement allowance according to the agreement on the division of retirement allowances, it is invalid as a retirement allowance payment (see Supreme Court Decision 2007Da90760, May 20, 2010, etc.). In light of the aforementioned legal doctrine, the Defendant paid the retirement allowance in installments by dividing it with the monthly
Even if this is a retirement allowance under the agreement on the installment, it is not effective as a retirement allowance.
Accordingly, the Defendant demanded interim settlement of retirement allowances on the grounds of his mother and wife-type illness, and paid monthly retirement allowances in installments. As such, pursuant to Article 8 of the Guarantee of Workers’ Retirement Benefits Act and Article 3(1)3 of the Enforcement Decree of the same Act, the above payment of retirement allowances is effective.
However, according to the records of this case, the employee retirement benefit security is guaranteed to E at the time of the installment payment agreement between the defendant and E.