207Na24791 Wages

H** (4 - 1)

Gwangju City

Co., Ltd. 000

Suwon District Court Decision 2007Ga Office decided October 18, 2007

13497 decided

May 16, 2008

May 30, 2008

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 4, 955, 276 won with 20% interest per annum from December 15, 2006 to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The plaintiff's working period, etc.

Defendant Company is a company that employs more than 40 employees and operates a general entertainment institute. From February 1, 1999, Defendant Company was serving as a life guidance instructor of Defendant Company.

(b) Introduction, etc. of an annual salary system;

(1) On March 1, 200, the Defendant Company entered into an agreement with the Plaintiff to the effect that, while settling interim retirement allowances for the existing period of service, including the Plaintiff, and converting the wage system into the annual salary system, the annual salary to be paid to the Plaintiff between the Plaintiff is set at KRW 13,272,00, as well as that to be deemed as including retirement allowances on the annual salary. On March 21, 2002, the Defendant Company entered into the same agreement with the Plaintiff to the effect that the annual salary for the Plaintiff is increased to KRW 15,156,840 (Provided, That the annual salary is paid in installments over 12 months; hereinafter the same shall apply).

(2) On April 11, 2005, the Defendant Company set the annual salary of 18,821, and 160 won between the Plaintiff and the Plaintiff from March 1, 2005 to February 28, 2006, and the retirement allowance of 18,821, and 30 days for each year of continuous service shall be paid as average wages for 1 year of continuous service as 30 days pursuant to the Acts and subordinate statutes related to labor relations, but it shall be paid in 1,568, and monthly payment shall include 1,20,650 won for each month of 12 months of annual payment in installments, as well as 1,20,650 won for each month of 430 won. In addition, the Defendant Company received an agreement to the effect that each month payment from all employees including the Plaintiff, and received the interim retirement allowance from 200 to 30 months of interim payment and criminal charges related to the interim retirement allowance.

(3) On February 20, 2006, the Defendant Company entered into an agreement with the Plaintiff to the effect that the annual salary for one year from January 1, 2006 to December 31, 2006 shall be KRW 19,963,320, and the retirement allowance shall be calculated and paid at the end of each year by modifying the interim settlement method, and that the retirement allowance shall be calculated and paid at the end of each year. The Defendant Company received an interim settlement application from all employees including the Plaintiff.

C. Receipt of retirement and retirement allowances by the plaintiff

(1) On March 27, 2006, the Plaintiff retired from the Defendant Company, and was re-employed from March 28, 2006 to November 30, 2006 as a commissioned position, and worked until November 30, 2006.

(2) At the time of the Plaintiff’s retirement on March 27, 2006, the Defendant Company paid the Plaintiff a retirement allowance corresponding to the three-month period between the period of employment in 2006 and the period of employment in 2006. However, upon the Plaintiff’s request to pay the retirement allowance for the entire period of employment after the Plaintiff’s retirement, the Defendant Company paid KRW 3,327,220 to the Plaintiff.

(3) On the other hand, under the premise that the above interim settlement is null and void, the average wage is calculated based on the Plaintiff’s wage paid for three months retroactively based on March 27, 2006, as prescribed by the labor-related Acts and subordinate statutes, and the calculation of the Plaintiff’s retirement allowance is made by multiplying the number of years of continuous service (excluding the period during which the Plaintiff worked as a commissioned officer, March 1, 200 through March 27, 2006, and March 27, 2006), 10,073,622 won as shown in the separate sheet. Here, 39,000 won paid to the Plaintiff for the period of service in 206 (where the amount is not clear in the record but is calculated based on the above calculation method, it shall be the amount above), 3,327, and 200 won, and as the Plaintiff seeks additional payment from this case, as seen in the following case:

2. Determination on the duty to pay retirement allowances and the defendant's assertion

(a) Obligation to pay a retirement allowance;

As seen later, insofar as interim settlement of retirement pay is deemed null and void, the Defendant is obligated to pay the Plaintiff additional retirement allowance of KRW 4, 955, 276, and damages for delay calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from December 15, 2006 to the date of full payment.

B. The defendant's assertion

(1) Since the Plaintiff submitted a written confirmation of the fact to the Defendant on April 11, 2005, the Plaintiff’s lawsuit in this case is unlawful, since it entered into an agreement to bring an action on the part of the Defendant.

(2) On or after March 1, 200, when converting into the annual salary system, the retirement allowance was paid by including it in the monthly wage. On March 1, 2005, upon renewal of the employment contract, the interim settlement application was received and the interim settlement was made. Therefore, there is no retirement allowance to be paid.

(3) Even if the interim settlement of accounts, etc. is null and void, the Plaintiff would have unjustly earned an amount equivalent to retirement allowances out of the monthly paid wages, and thus, it should be deducted from the retirement allowances to be additionally received by the Plaintiff.

C. Judgment on the defendant's assertion

- (1) The right to claim a retirement allowance is only a requirement for the termination of a labor relationship, and there is no room for the obligation to pay a retirement allowance during the existence of a labor contract. Therefore, even if a certain amount was included in the wage paid every month as retirement allowance, it cannot be deemed a lawful and effective payment of a retirement allowance (the agreement to be paid by including a retirement allowance among the monthly wages is an agreement to waive the right to claim a retirement allowance in advance, and its validity cannot be recognized).

(2) However, an employer may, upon a worker’s request, pay a retirement allowance for the period in which the worker has continued to work before his/her retirement (Article 8(2) of the Act on the Guarantee of Voluntary Retirement Benefits). However, if an employer grants a retirement allowance to include a certain monthly amount in his/her wages as a legitimate interim settlement of accounts after setting a notice to make an interim settlement of the retirement allowance each month at the time of entering into a labor contract, it may be deemed that the retirement allowance system may cause a failure to keep the system of interim settlement of accounts. In light of the fact that an interim settlement of accounts may result in the failure of the system of interim settlement of accounts, it should be deemed that the employee’s explicit interim settlement of accounts is required for each interim settlement of accounts for the past, not for the plaintiff’s employees to make a voluntary interim settlement of accounts for the past period at the time of his/her interim settlement of accounts. In light of the above facts, in this case, the defendant company, including the plaintiff, did not make a demand for interim settlement of accounts for the past period

It cannot be viewed as legitimate and effective interim retirement pay settlement, even though a written employment contract is prepared to include a certain amount in the wages, or a written confirmation of the purport that it will receive interim payment for the future period of employment, and it is merely a receipt of such a written statement of confirmation that it will receive interim payment for the future period of employment (it cannot be viewed as a legitimate and effective interim retirement pay settlement (it shall not be allowed to refuse the above interim settlement request of the defendant company unless the defendant company's employees make a request for simple employment). Furthermore, as long as the plaintiff's interim settlement cannot be seen as a valid interim settlement of retirement pay as long as it cannot be seen as a valid interim settlement of retirement pay, even if the defendant received a written confirmation that he would not raise any civil objection against retirement pay from the plaintiff on April 11, 2005, it is merely an agreement to waive the right to claim a retirement allowance at the time of retirement in advance.

(3) In addition, insofar as the Defendant’s payment of retirement allowances included in the monthly wage cannot be deemed as the payment of retirement allowances, such payment shall not be deemed as a payment of retirement allowances, regardless of its title, and thus, it cannot be deemed as unjust enrichment by the Plaintiff (such offset or deduction as above bring about the deprivation of the retirement allowance system, and thus shall not be allowed). Accordingly, the Defendant’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge

Judges

Judges