The case holding that the agreement to return the existing honorary retirement allowances to the company where the honorary retirement allowances are to be returned within three years after the voluntary retirement was made on condition that the voluntary retirement recipient shall work for at least the retirement age after re-admission or at least the period of compensation under the voluntary retirement allowances.

Where an honorary retirement allowance equivalent to 30/10 of the honorary retirement allowance is paid from the company at the time of voluntary retirement, and the honorary retirement allowance is to be returned to the company within three years, the case held that the above return agreement conditioned that the honorary retirement employee shall work for at least 30 months up to the retirement age after re-admission or at least 30 months of the compensation period under the honorary retirement allowance.

[1] Article 105 of the Civil Act, Article 34 of the Labor Standards Act

Kim J. (Attorney Park Jae-hoon, Counsel for the defendant-appellant)

The Construction Technology Education Center (Law Firm two, Attorneys Kim Jae-gu, Counsel for defendant-appellant)

Seoul District Court Decision 200Gahap98937 delivered on June 29, 2001

1. The part of the original judgment against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 47,145,120 won with 5% interest per annum from December 30, 200 to May 17, 2002, and 25% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the litigation shall be five minutes, one of which shall be borne by the plaintiff and the other by the defendant respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 56,934,00 won with 55% per annum from April 20, 1998 to the service date of a copy of the complaint of this case, and 25% per annum from the next day to the full payment date.

2. Purport of appeal

The part of the judgment of the court below against the plaintiff falling under the following amount shall be revoked. The defendant shall pay to the plaintiff 47,145,120 won with 5% per annum from April 20, 1998 to the service date of the copy of the complaint of this case, and 25% per annum from the next day to the full payment date.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by adding up the whole purport of the pleading to the statements in Gap evidence of 1 to 7, Eul evidence of 1, and Eul evidence of 2-1 and 2 of 2, and there is no counter-proof.

A. On August 3, 1978, the Plaintiff was enrolled in the Defendant Education Center and served as the Secretary (Grade I office). On March 6, 1998, the Plaintiff received retirement allowances of KRW 260,767,315 and KRW 56,934,00 (hereinafter “retirement allowances”) equivalent to retirement allowances of KRW 30 months at the time of leaving the retirement age for six years.

(b) At the time of the above retirement, the Plaintiff agreed to return the retirement allowance to the Defendant when the Plaintiff returned to the Defendant Education Center within three years after the retirement (hereinafter referred to as the “instant return agreement”).

(c) On April 20, 1998 immediately after the retirement of the Plaintiff, the Plaintiff, in the form of new employment under the Defendant’s proposal, re-enters as the Secretary General at the time of the retirement, and returned the retirement allowance in accordance with the instant return agreement.

D.After that, while reducing the number of persons in terms of restructuring, the defendant selected the plaintiff who was the highest continuous service period and recommended his resignation. Accordingly, the plaintiff was paid special merit pay 9,788,880 won on December 31, 1998 and retired again in the form of dismissal from office for council members.

2. Determination:

The plaintiff asserts that the plaintiff's return of retirement allowances is premised on the duty to return the returned retirement allowances to the plaintiff, and that the defendant is obligated to return the returned retirement allowances to the plaintiff, since he/she retires again within the limit of eight months according to the defendant's recommendation of resignation.

First of all, there is no evidence to acknowledge that the defendant agreed to ensure that the defendant continued to work until the retirement age, or to return the retirement allowance returned at the time of retirement, to the plaintiff.

However, in full view of the following circumstances, it is reasonable to deem that the instant return agreement was conditioned on the Plaintiff’s work at least for at least 30 months, not until the retirement age after re-admission.

(1) The meaning of return of retirement allowances

The honorary retirement allowances are paid at the level of compensation for the voluntary retirement of an employee whose service is guaranteed by the original retirement age before his/her retirement age reaches the retirement age. Thus, it can be said that the Defendant’s return of retirement allowances and re-enters the Plaintiff can be seen as having the meaning of returning the Plaintiff in the previous status before his/her voluntary retirement. Therefore, it is reasonable to view that both the Plaintiff and the Defendant would have scheduled the Plaintiff to work until their retirement age as originally, barring special circumstances.

② The purpose of the instant return agreement

The instant return agreement appears to have been concluded in view of the following: (a) when the Plaintiff re-enters the retirement allowance to receive the benefits by receiving compensation equivalent to half the amount of the benefits during the remaining period of retirement age; (b) the Plaintiff obtained double benefits; and (c) there is a problem in equity with other employees on the part of the Plaintiff who are on duty. However, if the Plaintiff re-enters the retirement allowance after the expiration of the said period, the Plaintiff was paid the amount equivalent to 30-month benefits with the retirement allowance; and (b) if the amount of remuneration the Plaintiff did not receive until the time of re-admission is more than the retirement allowance, such unreasonable problems do not arise even if the amount of remuneration the Plaintiff did not receive until the time of re-admission is more than the retirement allowance, and thus, the time of return of the retirement allowance under the instant return agreement is limited to 3 years after the retirement.

However, as in the instant case, in the event that a person retires within 3 years, even if he/she re-enters within 3 years, only the period of less than 30 months, which is the compensation period for retirement allowances, and retires again, even if he/she did not return the retirement allowances after 3 years of his/her voluntary retirement, it cannot be said that the Plaintiff obtains unjust duplicate profits, as in the instant case, even if he/she did not return the retirement allowances after 3 years of his/her voluntary retirement, and rather, he/she would be more unfavorable than the holding of the retirement allowances without the intention of re-admission. Therefore, it would be interpreted that the return

(3) The parties concerned at the time of returning a retirement allowance.

In returning and returning a retirement allowance, the Plaintiff, as a matter of course, anticipated that he would naturally be able to work until the retirement age or at least 30 months (if he was aware that he will retire again within the short term, he would have not taken the intention of re-admission). In full view of the purport of the pleading in the testimony of the lower court and the witness model of the first instance court, it can be recognized that the Defendant was well aware of these circumstances in receiving the return of the retirement allowance of this case. Therefore, it is reasonable to deem that there was an implied agreement between the Plaintiff and the Defendant as to the fact that working for a considerable period after re-admission is the prerequisite for the return of the retirement allowance of this case.

Therefore, as seen earlier, the Plaintiff was retired from office for a period of eight months after re-admission, and that agreement was not due to the Plaintiff’s voluntary intent or due to the Plaintiff’s cause attributable to the Plaintiff, the instant return agreement was invalidated due to the fulfillment of the terms and conditions of rescission. Therefore, the Defendant is obligated to return the remaining amount of KRW 47,145,120 (56,934,00-9,788,880) after deducting the special merit bonus paid at the time of the second retirement from the retirement allowance returned by the Plaintiff.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 47,145,120 won and damages for delay at the rate of 25% per annum under the Civil Act from December 30, 2000 to May 17, 2002, which is the date of the filing of the lawsuit of this case, which is regarded as the beneficiary of bad faith with respect to the above gold 47,145,120 won, and the date of the lawsuit of this case, which is regarded as the beneficiary of bad faith (which is recognized as reasonable for the defendant to dispute) and from May 30, 200, the next day to the date of the full payment, to the date of this decision, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as without any justifiable reason. Accordingly, the part against the plaintiff of the court below which partially different conclusions are unfair, so it is ordered to pay

Judges Lee Lee-soo (Presiding Judge) (Presiding Justice)