Of the judgment of the first instance, the part against the defendant exceeding the money ordered to be paid under this judgment shall be revoked.

1. Facts of recognition;

A. On October 20, 2010, the Plaintiff was employed by the Defendant running a restaurant in China, and served as a subsidy to the head of a kitchen until October 12, 2014.

B. The Defendant paid KRW 5,046,080, which was partially part of the retirement allowance, to the Plaintiff on December 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, the purport of the whole pleadings

2. The parties' assertion

A. The Defendant paid a certain amount to the Plaintiff, without any agreement with the Plaintiff, arbitrarily divided the same amount into benefits and retirement allowances into money in the name of the Plaintiff. Since the agreement between the Plaintiff and the Defendant on actual division of retirement allowances cannot be deemed to exist, the Defendant cannot be deemed to have paid retirement allowances to the Plaintiff during the Plaintiff’s work.

Therefore, the defendant is liable to pay the retirement allowance and damages for delay payable to the plaintiff.

B. Since Defendant paid KRW 200,000 per month from August 2012 to the Plaintiff’s pay day as retirement allowance, Defendant has a claim for return of unjust enrichment equivalent to the amount paid as retirement allowance to the Plaintiff.

Since the portion exceeding 1/2,195,00 of the retirement allowance claim claimed by the Plaintiff with the above unjust enrichment return claim exceeds 2,195,00 won, the plaintiff's claim in excess is without merit.

3. Determination

A. According to the facts of the judgment on the Plaintiff’s cause of claim, the Defendant is obligated to pay the Plaintiff the unpaid retirement allowance of KRW 4,390,000 (=total retirement allowance of KRW 5,046,080 – retirement allowance of KRW 656,080 paid on December 24, 2014) and damages for delay.

B. Determination on the Defendant’s counterclaim against offset 1) If an agreement was made to pay in advance a certain amount of money with the monthly wage or daily wage paid by an employer and an employee, along with the Defendant’s automatic claim (a) and the monthly wage paid by an employee (hereinafter “retirement allowance installment agreement”), then the agreement was made.