Defendant

Maximum beneficiary;

Defendant shall be punished by a fine of KRW 700,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The Defendant is the representative of ○○ Automobile Maintenance, which is located in the Seogu Scatteringdong (Land Number omitted), and is an employer who runs a motor vehicle maintenance service business using 12 regular workers.

On November 11, 2009, the Defendant did not pay KRW 3,386,658 of retirement allowances of the non-indicted workers retired from the above company within 14 days from the date of retirement without any agreement between the parties on the extension of the due date.

1. Partial statement of the defendant;

1. Legal statement of the Nonindicted Witness

1. Police suspect interrogation protocol of the accused;

1. Statement of the Nonindicted Party

1. A written calculation of average wages and retirement allowances;

1. Relevant Article of the Act and the choice of punishment for the crime;

Articles 109(1) and 36 (Selection of Punishment of Fines)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The assertion;

After concluding an annual salary contract with the employee non-indicted, the retirement pay was included in the monthly salary.

2. Determination

Even if an employer and an employee agreed to pay a certain amount in advance with the monthly salary paid each month (hereinafter “retirement allowance installment agreement”), such agreement is null and void in violation of Article 34 of the Labor Standards Act and Article 8 of the Guarantee of Workers’ Retirement Benefits Act, which are mandatory law, as it waives a claim for retirement benefits accrued at the time of the last retirement, unless it is acknowledged as an interim settlement of the retirement allowance under the Labor Standards Act. As a result, even if an employer paid a certain amount to an employee under the agreement on division of retirement allowances, it is not effective as a retirement allowance payment (see Supreme Court Decision 2007Da90760, May 20, 2010, etc.). Further, even if the Defendant received the “written request for interim settlement of payment of retirement allowances” from the non-indicted employee to the effect that “I request the payment of interim settlement of payment of retirement allowances for the preceding year,” and even if the Defendant paid the pre-paid amount as a monthly salary, the validity of the payment of retirement allowances under the Labor Standards Act cannot be recognized.

Therefore, in cases where there exists an agreement on the division of retirement allowances, and where an employer and an employee agree to actually pay a certain amount of money under the pretext of additional retirement allowances, such as that the content of the employment contract including the agreement on the division of retirement allowances should not be disadvantageous to the employee in light of the previous employment contract or the Labor Standards Act, etc., when considering the amount of wages excluding the nominal amount of retirement allowances, the Defendant’s assertion premised on the validity of the agreement on the division of retirement allowances in this case cannot be accepted, aside from the fact that the amount in the name of retirement allowances received under the agreement on the division of

Judges Lee Jong-chul