In a case where Gap, a corporation, retired from office as a director (standing director) or a representative director, and Eul, a director (non-standing director and non-standing director) filed a claim for retirement allowance against Eul, the case holding that Eul, a corporation, is obligated to pay Eul a retirement allowance calculated in accordance with the payment rules for retirement allowances for executive officers of Gap, barring any special circumstance, on the ground that Eul, retired from office as the representative director, actually caused retirement of executive officers

In a case where Gap corporation filed a claim for retirement allowance against Eul corporation, who retired from office as a director (standing director) or a representative director, and worked as an inside director (non-standing director) as of the retirement date of non-standing directors, the case holding that Gap corporation is obligated to pay retirement allowance calculated in accordance with the payment rules of retirement allowances to Eul, except in special circumstances, on the ground that the average wage (the total amount of wages paid during the three-month period prior to the retirement date is divided by the total number of days in that period) can be zero won if the retirement allowance is calculated as of the retirement date of non-standing directors; in such a case, there is no doubt that the payment rules of retirement allowances for the officers of Gap corporation, which made directors and auditors pay retirement allowances to the directors and auditors; and the average wage and the continuous employment period of the non-standing directors must be calculated as of the time when the non-standing directors are changed from the full-time directors to the retirement date; and if the time when the non-standing directors only were decided as the retirement date, it shall be deemed that the actual causes for retirement of the officer

Article 34 of the Labor Standards Act

Plaintiff (Attorney Seo-dae et al., Counsel for the plaintiff-appellant)

Pakistan Co., Ltd. (Law Firm Cheongnam, Attorneys Jeong Jin-hun, Counsel for the plaintiff-appellant)

December 7, 2011

1. The defendant shall pay to the plaintiff 276,948,592 won with 20% interest per annum from July 14, 2011 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Defendant Company was established on July 7, 1976, as the trade name of the Han River Co., Ltd., Korea Industries Co., Ltd., Co., Ltd., Cos., Ltd., and Cos., Ltd., Cos., Ltd. and Cos., Ltd., Co., Ltd. were successively changed to the trade name on October 6, 2008.

B. From July 7, 1976, the Plaintiff was in office as a director (standing director) of the Defendant Company, and retired from office on April 30, 201 after he was appointed as the representative director of the Defendant Company on April 23, 1980, and thereafter, he was in office as a director of the Defendant Company (standing director without remuneration and non-standing director).

C. Article 38(2) of the articles of incorporation of the Defendant Company provides that “The payment of retirement allowances to directors shall follow the rules on the payment of retirement allowances for executives subject to a resolution of the general meeting of shareholders.” On March 27, 2009, the Defendant Company held a regular general meeting of shareholders on March 33, 2009 and passed a resolution to amend the rules on the payment of retirement allowances for executives (hereinafter “the instant rules on the payment of retirement allowances”) with the content of newly establishing Article 13(5) of the same Act as the following stated in Article 13 of the Rules

본문내 포함된 표 개정 전 개정 후 제13조 (퇴직금) 제13조 (퇴직금) ① 회사는 계속 근로 1년 이상인 자가 퇴직하는 경우에는 근로기준법 제34조에 의한 퇴직금을 지급한다. ①항에서 ④항까지는 종전과 동일함 ② 사원의 퇴직금계산은 평균임금을 기준으로 하여 다음과 같이 계산한다. ？ (평균임금 × 30일 × 재직일수/365일) ④ 업무상 상병으로 요양 중인 근로자가 퇴직한 경우에는 근로기준법에 의해 평균임금으로 퇴직금을 산정한다. ③ 사원의 평균임금이 통상임금보다 저액일 경우 통상임금을 기준으로 하여 계산한다. ⑤ 이사와 감사의 퇴직금의 지급은 근로기준법 제34조에 의한 퇴직금을 지급하고, 단 대표이사는 1년 근무 시마다 3개월분(90일)을 가산한 퇴직금을 지급한다.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3 (including a provisional number), Eul 1-1 and 2-2, part of the witness non-party 1's testimony, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

On April 30, 201, the Plaintiff retired from office as the representative director of the Defendant Company, and thereafter serves as a non-repair or non-standing director, and thus, the Defendant Company’s executive officers are still retired. Therefore, the Defendant Company is obligated to pay to the Plaintiff a total of KRW 276,948,592 [20,805,373 of retirement pay during the period from July 7, 1976 to March 31, 2009 x 224,696 of retirement pay x 30 days x 11,956 days x 365 days x 11,96 days x 365 days x 56,143,219 (average wage x 224,696 x 120 days x 120 days x 360 days x 65 days x 60 days x 66 days x 65 days ].

B. The defendant company's assertion

1) Since in-house directors can perform their duties at any time, insofar as the Plaintiff still is in the position of inside directors of the Defendant Company, they cannot claim retirement allowances from the Defendant Company. In addition, if the Plaintiff claims retirement allowances on the ground of retirement of the representative director, the Plaintiff may not claim retirement allowances up to the period of his/her service as the director prior

2) At the general meeting of shareholders of this case, the special interested parties, such as the plaintiff, the joint representative director, the non-party 2, the directors, the non-party 3, the non-party 4, and the auditor, who received direct profits in accordance with the provision on the payment of retirement allowances of this case, were present, respectively. Since a new resolution was adopted with the consent of all of them, the above resolution is null and void in violation of Article 3

3) As the Defendant Company newly established the instant retirement allowance payment provision by the resolution of the instant general meeting of shareholders, and did not have any separate provision regarding its retroactive application, the Plaintiff may not claim for retirement benefits for the period of service before the resolution of the instant general meeting of shareholders has been adopted.

3. Determination

A. As to the occurrence of the duty to pay retirement allowances

The provision on the payment of retirement allowances of this case newly established by the resolution of the general meeting of shareholders provides that "the payment of retirement allowances to directors and auditors shall be made by paying retirement allowances under Article 34 of the Labor Standards Act, but the representative director shall be made by adding three months (90 days) to each one year of service." The plaintiff was appointed as the director of the defendant company on July 7, 1976, and the representative director of the defendant company on April 23, 1980, and retired from office on April 30, 201, and became the non-standing director on April 30, 201. After the plaintiff retired from office as the representative director, the fact that the plaintiff became the non-standing director on April 30, 201 is found to be the above facts strictly, if the amount of average wages (the total amount of wages paid for three months prior to the date of retirement was divided by the total number of days) can be 0 won, and if the plaintiff actually calculated the payment of the retirement allowances of this case as the changed number of 10 days.

Therefore, even if the plaintiff is a non-compensation or non-standing director, the defendant company's assertion that the defendant company cannot claim the payment of retirement allowances under the provision on the payment of retirement allowances in this case cannot be accepted.

B. As to the allegation on invalidity of the resolution of the general meeting of shareholders by Defendant Company

According to the evidence Nos. 1 and 2-2 of 1, 209, as of March 30, 2009, the plaintiff 4,211,064 shares (18.39%) as of March 30, 200, non-party 2, representative director non-party 4,46,452 shares (19.51% of the total number of shares issued), non-party 3, director non-party 6,790 shares, non-party 4, non-party 4, non-party 1, auditor non-party 1 held 20,00 shares, non-party 8,723,783 shares total number of shares held by the representative director, director, and auditor at the time, and the non-party 1 held 8,723,783 shares (38% of the total number of shares issued). The provision on the payment of retirement benefits in this case can be acknowledged with the consent of all participants.

However, a special interest under Article 368(4) of the Commercial Act refers to a case where a certain shareholder has a personal interest while leaving the position of a shareholder. The retirement benefits of executives affect the company's finance and harms the interests of the company and related interested parties. Thus, regarding the resolution of the general meeting of shareholders in this case, the plaintiff, non-party 2, 3, 4, and 1, who is an executive officer, has a special interest. However, the resolution of the general meeting of shareholders exercising voting rights by a shareholder who is not entitled to exercise voting rights, is merely subject to the cancellation of the resolution under Article 376 of the Commercial Act, because the resolution of the general meeting of shareholders is a special interested party under Article 368(4) of the Commercial Act, because the resolution of the general meeting of shareholders in this case is in violation of Acts and subordinate statutes or is remarkably unfair (see, e.g., Supreme Court Decision 2007Na127671, Sept. 26, 2008).

C. As to the computation of the amount of retirement

1) The right to claim a retirement allowance is a requirement of the fact that the continuous service period, average wages, and the rate of the payment of retirement allowances, which serve as the basis for the calculation of the retirement allowance, shall be at the time of retirement, unless there are special circumstances. The retirement allowances for directors shall be determined by the articles of incorporation or by the resolution of the general meeting of shareholders, including the remuneration stipulated in Article 388 of the Commercial Act, and such right to claim a retirement allowance shall be complied with when a director makes a resolution of the payment of the retirement allowance in accordance with the articles of incorporation or by the resolution of the general meeting of shareholders, which is effective at the time of retirement (see Supreme Court Decisions 95Da19256, May 14, 1996; 2003Da16092, 16108, May 25, 2006).

2) As to the instant case, the Plaintiff was in office as a director of the Defendant Company on July 7, 1976, and the representative director of the Defendant Company on April 23, 1980, and retired on April 30, 201, and the instant provisions on the payment of retirement allowances stipulate that an executive shall be paid retirement allowances in principle pursuant to Article 34 of the Labor Standards Act, as seen earlier, and according to Article 15(1) of the Rules on the Payment of Benefits of the Defendant Company, “the calculation of the number of days of employment of the employee shall be from the date of employment to the date of retirement,” and the Defendant Company may recognize the payment of retirement allowances to the non-party 5 and 6 who retired from office on December 209 and around December 2010, calculated the total number of years of employment including the period of service before the new provision on the payment of retirement allowances in this case, according to the above facts, the Plaintiff’s provision on the payment of retirement allowances in this case shall be calculated as the total period of employment.

Therefore, the above argument by the defendant company that the plaintiff cannot claim retirement benefits for the period of office before the plaintiff takes office as the representative director or for the period of office before the resolution of the general meeting of shareholders was made cannot be accepted.

3) Furthermore, with respect to the amount of the Plaintiff’s retirement allowance calculated in accordance with the provision on the payment of the instant retirement allowance, the amount of the Plaintiff’s total wages is KRW 19,98,00 for three months prior to the Plaintiff’s retirement. The amount of the Plaintiff’s retirement allowance divided by 89 days from February 1, 2011 to April 30, 201, the average wage of KRW 224,696 ( KRW 19,998,000 ± 89 days, and less than KRW 12,716 days from July 7, 1976 to April 30, 201; the Plaintiff’s tenure of office is no dispute between the parties; the amount of the Plaintiff’s retirement allowance is 12,716 days from April 30, 201; the amount of the Plaintiff’s retirement allowance calculated by 306 days from April 1, 209 to April 30, 2017>

D. Sub-committee

Therefore, the Defendant Company is obligated to pay to the Plaintiff damages for delay at the rate of 20% per annum from July 14, 201 to the date following the delivery date of a copy of the instant complaint, which is the day of complete payment, as sought by the Plaintiff, after fourteen days after the Plaintiff retired from the office of representative director.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Lee Dong-dong et al. (Presiding Judge)