(영문) 부산지방법원 2007.7.13.선고 2006나2534 판결

A. The defendant shall pay to the plaintiff 43,674,308 won with 5% interest per annum from August 1, 2001 to July 13, 2007, and 20% interest per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

3. Paragraph 1. A of this Article may be provisionally executed.

Purport of claim and appeal

1. Purport of claim and incidental appeal

The defendant shall pay to the plaintiff 43,674,308 won with 5% interest per annum from July 31, 2001 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment (the plaintiff shall have the claim of the principal reduced in the trial and extended the claim of the interest).

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked. The corresponding plaintiff's claim shall be dismissed.

Reasons

1. Basic facts

가.원고는 신경정신과 전문의로 상시 근로자 5인 이상의 사회복지법인 ●●의료재단(이하 '소외 법인'이라고만 한다)이 운영하는 ▶▶정신병원에 1995. 4. 00. 입사하여 의사로 근무하다가 2001. 7. 00. 퇴사하였다.

나. 피고는 2001. 10. 00. 설립된 의료법인으로 현재 ▶ ▶ 정신병원을 운영하고 있고, 소외 법인의 ▶▶ 정신병원에 대한 권리의무관계를 승계하였다(따라서 이하에서는 피고 설립 이전의 법률관계에 있어서도 소외 법인을 '피고'라고 통칭한다).

[Ground of recognition] Facts without dispute and purport of whole pleading

2. The parties' assertion

From April 00, 195 to July 00, 2001, the Plaintiff sought a payment of the monthly average wage of KRW 43,674,308, which is calculated as KRW 7,119,000, and the Defendant accordingly, the Defendant: ① is not the Plaintiff’s employee; ② from the date of entry to the date of departure (hereinafter “the first period”) to the date of 1998, the salary received by the Plaintiff is the so-called net wage, regardless of the amount of taxes, which guarantees a specific amount,; and from the date of withdrawal from the date of 1999 to the date of retirement (hereinafter “the second period”) was paid to the Plaintiff as annual salary. Since the Plaintiff’s obligation to pay taxes to the Plaintiff for the first period was paid in cash instead of the annual salary deposited each month to the head of the Tong, the Plaintiff’s obligation to return the retirement allowance to the Defendant for the second period to the Plaintiff’s payment of taxes under the premise that it should be paid separately from the annual salary and advance payment during the second period.

3. Determination

(a) Facts of recognition;

(1) During the first period, the Defendant: (a) determined the total amount of benefits to be actually received by the Do Mental Hospital doctor; (b) guaranteed the amount of taxes to be paid by the doctors; and (c) paid the amount of taxes to the doctors instead of the Defendant. Accordingly, the Plaintiff actually received KRW 6.5 million to 7.5 million each month from the Defendant during the said period.

(2) On December 198, the National Tax Service urged a general hospital to collect and simplify the above variable remuneration contract, and the defendant holds a meeting for the doctor of Do○ Mental Hospital, and thereafter various taxes, such as earned income tax, should be borne by the doctor. Accordingly, the portion where the amount of benefits to be actually received is reduced by the doctor is to be compensated by dividing 200% of the average monthly salary according to the annual salary contract as retirement allowance at the monthly salary payment day with lower tax rate, and the doctor agrees that even according to the above method, there is no difference between the previous and the actual amount to be received.

(3) 이에 피고는 1998. 00. 말경부터 매년 ▶▶ 정신병원 의사들과 서면으로 연봉계약을 체결하고, 2차 기간 동안 의사들에게 연봉계약서에 기재된 연봉액과 별도로 매달 약 100만 원 전후의 금액을 현금으로 지급하였으며, 연초에는 전년도 퇴직금 원천징수영수증을 교부하였다. 그 결과 의사들이 피고로부터 실제 수령하는 금액은 종전의 이른바 네트제 때와 거의 차이가 없게 되었다.

(4) From January 199 to December 199, the Plaintiff knew the fact that the method of wage payment was changed, but did not raise any objection. On July 31, 2001, the Plaintiff concluded an annual salary contract with the Defendant each year until his retirement, and received the amount of 12/100 of the annual salary stated in the annual salary contract with the Defendant as a passbook every month, and received the amount of KRW 13,606,800 or more cash separately from the date of receiving the monthly salary, and signed on the receipt stating that the Plaintiff received KRW 13,606,80 as retirement allowance at the end of every month.

(5) Under the annual salary contract concluded between the Plaintiff and the Defendant during the year of his retirement, the Plaintiff’s annual salary is KRW 85,428,00 (monthly 7,119,000).

(6) The Plaintiff worked at the Do○ Mental Hospital and provided medical treatment using equipment, medical instruments, etc. owned by the Defendant. The daily working hours were 09:00-18:00 to 17:00 during the summer season, and 09:0 to 17:00 during the winter season. The medical care division and the medical care division were in consultation with the head of the administration in advance about the occupational important matters, and the period of leave was limited, and the report was required in advance, and the Defendant was paid the above monthly remuneration in return for the above work, and the Defendant withheld the working income tax from the Plaintiff (However, the Defendant was actually liable for the working income during the first period).

[Ground of Recognition] Facts without dispute, Eul evidence 1-2, Eul evidence 1-2, 28, 33, 36, Eul evidence 2-4, Eul evidence 4-2-4, Eul evidence 12-1, 2-2, Eul evidence 17-1, Eul evidence 19-1, 2, and 3-4 through 12, 3, Eul evidence 5-1-2, 24, 25, 26, 30, 31, and Eul evidence 21-1, 2, 3, and 5-21-3, witness of the first instance trial, witness of the court of first instance, witness of the E-F, witness of the court of first instance, witness of the GHG, testimony of the GH and the purport of whole pleadings.

B. Whether the Plaintiff is an employee

Even if the Plaintiff did not receive specific direction and supervision from the Defendant in relation to his/her duties due to the nature of his/her duties that require high expertise, it is reasonable to deem that the Plaintiff constitutes a worker since the Plaintiff provided labor to the Defendant in a subordinate relationship for the purpose of wages, considering the following: (a) the Plaintiff was designated as working hours and working places by the Defendant; (b) the Plaintiff was employed by a third party; and (c) the Plaintiff provided labor continuously and exclusively for working hours as it was impossible for him/her to act as an agent; and (d) the Defendant provided labor using equipment, medical appliances, etc. owned by the Defendant;

(1) In the case of the primary period:

According to the above facts, during the first period, the defendant set the total amount of benefits to be actually received by the plaintiff, guaranteed it, and paid the amount of taxes to be paid by the plaintiff to the defendant on behalf of the defendant, and the part of the evidence Nos. 1-24, 25, 26, 30, 31, and 21-1, 2, 3, and 21-21-3, and the witness EE of the first instance court, witness FFF, GG, and HH's testimony is not believed, but it is not sufficient to recognize the remainder of the evidence alone, and there is no other evidence to acknowledge it (it is not effective as retirement allowance payment as stipulated under the law as follows, even if there is an agreement as above).

(2) In the case of the second period:

In light of the above facts, as the defendant decided to change the method of payment of retirement benefits on or around October 1998 and held a meeting against the doctor, and there was an agreement that the portion of the amount for which the intention to pay taxes should be reduced in advance on a monthly basis as retirement allowances, and the plaintiff received the amount without any objection even though he knows that the method of payment was changed due to the above circumstances, and signed a receipt that received the amount as retirement allowances at the end of October 1999, it is reasonable to deem that an agreement was concluded between the plaintiff and the defendant to make the advance payment of retirement allowances at least on a monthly basis during the second period, and accordingly, the amount of KRW 1 million was paid in cash.

However, Article 34(1) of the former Labor Standards Act (amended by Act No. 7379, Jan. 27, 2005; hereinafter referred to as the "former Act") provides that "retirement allowances shall be paid to retired workers," and "retirement allowances" shall be paid only upon the completion of the labor contract, which is a retirement, and there is no room for a duty to pay retirement allowances in principle during the existence of the labor contract. Thus, even if the defendant paid retirement allowances to the plaintiff according to the agreement between the plaintiff and the defendant to pay retirement allowances in advance each month, it shall not be effective as retirement allowances as provided by Article 34(1) of the former Act (see Supreme Court Decision 2002Do2211, Jul. 12, 2002).

Although the Defendant asserts to the effect that the amount paid in cash each month to the Plaintiff during the second period constitutes advance payment and the above amount was settled as retirement allowance at the end of each year, it is valid as an interim settlement under Article 34(3) of the former Act. However, even if advance payment was made in the form of advance payment, in light of the fact that the Defendant agreed to make advance payment as retirement allowance and regularly paid the amount each month, it is merely the form of advance payment made in order to avoid the invalidation of advance payment of retirement allowance, and it is nothing more than the retirement allowance advance payment agreement, and it is difficult to view it as an effective interim settlement under Article 34(3) of the former Act.

This part of the defendant's argument is without merit.

D. Whether the statute of limitations expires

In light of the above facts, there is no evidence to acknowledge that the continuity of a labor relationship has been severed as of December 00, 1998, and there is no evidence to acknowledge it. Accordingly, the plaintiff only entered into a new labor contract applying a different wage payment method from the previous one from January 0, 1999 and continued to work without a blank period. Thus, the continuity of a labor relationship is recognized (if there was a request from the plaintiff at the time of December 31, 1998 for interim adjustment of retirement pay from the plaintiff at the time of the request of December 31, 1998, the obligation to pay retirement pay for the first period shall arise, but there is no evidence to acknowledge this fact).

Therefore, this part of the defendant's assertion is without merit under the premise that the obligation to pay retirement allowances for the first period of December 31, 1998 arises.

E. Whether an amount equivalent to the amount paid by the Defendant for taxes and retirement allowances borne by the Plaintiff is deducted

As seen earlier, the Plaintiff’s assertion that the Plaintiff’s tax owed by the Plaintiff for the first period is unjust enrichment on the premise that the said agreement is null and void, although it is deemed that the Defendant was aware of the fact that the Plaintiff was liable to pay the tax during the first period, and that the Plaintiff agreed not to pay the retirement allowance, including the retirement allowance, to pay the monthly salary, is not recognized. Therefore, the Plaintiff’s assertion that the tax owed by the Defendant on behalf of the Plaintiff is unjust enrichment

In addition, as seen earlier, although the payment of retirement allowances under the pre-payment agreement between the plaintiff and the defendant during the second period is null and void, it is deemed that the plaintiff should return the money paid as retirement allowances to unlawful gains. If the plaintiff is unable to file a claim for retirement allowances with an employee who entered into an agreement for pre-payment of retirement allowances in violation of the Labor Standards Act, as in the instant case, since the employee who entered into an agreement for pre-payment of retirement allowances is unable to file a claim for retirement allowances, it is different from recognizing the validity of the agreement for pre-payment of retirement allowances, and as a result, providing a system for the payment of retirement allowances to the retired employee, the legislative intent of the retirement allowances system under the Labor Standards Act, which provides that the employee shall prepare for the pre-payment of retirement allowances (see Supreme Court Decision 2005Da34469, Oct

(f) Scope of obligations to pay retirement allowances;

According to the above facts, the total amount of wages that the Plaintiff received during the three-month period prior to his retirement exceeds 21,357,000 won on the basis of annual salary stated in the annual salary contract (i.e., month 7,119,000 won X 3 months), but when calculating the Plaintiff’s retirement allowance as the average wage for 30 days for 1 year of his/her continuous service based on the above amount upon the Plaintiff’s request as a result of the Plaintiff’s request, 43,674,308 won [(21,357,000 won: 92 days)] x 30 days X (69/365 days + 99) x 365 days).

4. Conclusion

Therefore, the defendant, including the plaintiff's claim extended at the trial, has a duty to claim 43,674,308 won of retirement allowance as claimed by the plaintiff and damages for delay from August 1, 2001, which is the day following the plaintiff's retirement (the plaintiff claimed damages for delay from July 31, 2001, but the part of July 31, 2001, which is not reasonable). It is reasonable to dispute about the existence and scope of the defendant's obligation to pay damages for delay at the rate of 5% per annum as stipulated in the Civil Act until June 7, 2004, and 20% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day until the day of full payment. Thus, the plaintiff's claim is justified within the above recognition scope, and the remaining claims are dismissed. The judgment of the court of first instance shall be dismissed since the plaintiff's claim for delay damages is considerably 20% per annum from the next day after the date of service of the plaintiff's claim.