1. Of the judgment of the court of first instance, the part against the defendant in excess of the following amount ordered to be paid shall be revoked.

1. Basic facts

A. On July 26, 2011, the Plaintiff concluded a labor contract with the Defendant, who is engaged in the clothing processing business under the trade name C, and provided labor, and retired on April 13, 2017.

B. On February 21, 2018, the Defendant was sentenced to a fine of KRW 1,00,000 due to a violation of the Labor Standards Act on February 21, 2018, and the said judgment became final and conclusive around that time.

(Seoul Eastern District Court 2018Gohap100). [Reasons for Recognition] The fact that there is no dispute, Gap evidence 1, Gap evidence 5-1 and 2, and the purport of the whole pleadings.

2. Determination

A. According to the facts of the above recognition of the Plaintiff’s claim for retirement allowance, the Defendant is obligated to pay the Plaintiff a retirement allowance of KRW 11,499,940 and delay damages therefrom, except in extenuating circumstances.

B. As to the Defendant’s assertion of deduction, (1) If the Defendant’s assertion deducts the Plaintiff’s withholding tax amount of KRW 4,897,410 paid by the Defendant to the Plaintiff from the retirement allowance that the Defendant paid to the Plaintiff, the Defendant’s retirement allowance is KRW 6,602,530

(2) As a matter of principle, the obligor’s obligation to pay income tax withheld under Article 21(2)1 of the Framework Act on National Taxes is established when the amount of income is paid, and the timing when the recipient’s obligation to pay the amount of income is established is also the same. Therefore, the payer cannot collect and deduct the source tax prior to the due date of income.

(2) If a withholding agent pays income tax, etc., which is to be withheld at source after a withholding agent’s liability was established due to the legal fiction of income payment, etc., the amount of legitimate tax actually paid can be deducted in advance from the amount of income to be paid.

(See Supreme Court Decision 2013Da36347 Decided October 27, 2014). The evidence Nos. 9, each of the evidence Nos. 8 through 12, 15, 16, 17, 20, and 21, the Seoul East Branch of Korea Labor Welfare Corporation, the president of the National Health Insurance Corporation, and the president of the National Health Insurance Corporation.