[1] The validity of the agreement to return educational expenses if a person fails to perform his/her duty in the period of occupational employment after the commissioned education (effective)

[2] Where a corporation's provision provides that normal benefits shall be paid even during the period of entrusted education under the provision of the corporation, the validity of the agreement to return the benefits if the corporation fails to perform the period of compulsory employment after the entrusted education (negative)

[3] Whether a claim for return is filed at the time of debt repayment against a free will (affirmative)

[4] The case holding that the return of the benefits under the agreement to return the benefits when the person fails to perform his/her duty period after the commissioned education does not constitute a non-debt repayment in accordance with Article 742 of the Civil Code or the concept of the intention under Article 744 of the Civil Code

[1] The agreement that the employer plans to pay a penalty or damages against the nonperformance of the labor contract is null and void as it violates Article 24 of the Labor Standards Act, which is a mandatory provision. If an employee who has paid expenses to an enterprise and received such expenses does not work for a certain period of compulsory employment from the date of completion of education, he/she shall reimburse all or part of the pertinent educational expenses borne by the enterprise first, but if an employee works during the period of compulsory employment, the agreement that the employee grants a penalty or damages, which is prohibited under Article 24 of the Labor Standards Act,

[2] In a case where a company is obliged to pay normal wages and bonuses to a long-term trainee in the course of the domestic long-term training program, the company is obligated to pay normal wages and bonuses to a worker in the course of the domestic long-term training program. As such, with respect to ordinary wages and bonuses, it cannot be said that the company has the right to claim the return of the worker by preferentially bearing the expenses to be borne by the worker, and thus, if the worker fails to perform his compulsory service after the completion of the compulsory service period, the agreement that the ordinary wages and bonuses paid during the compulsory service period should be returned to the company is null and void as a scheduled penalty or compensation for damages prohibited under Article 24 of the Labor Standards Act.

[3] The repayment of non-performance under Article 742 of the Civil Code is established only when the payer has voluntarily paid it with the knowledge of the absence of the obligation. Even if the payer was aware of the absence of the obligation, if there are circumstances to deem that the repayment was made against his own free will, such as where the repayment was enforced, or where it was inevitable to avoid de facto damage caused by the refusal of payment, etc., the payer does not lose

[4] In a case where part of the amount of benefits the employee received during the period of training was returned according to the agreement that had the employee returned the benefits when he failed to perform the obligatory period of service after the entrusted education, the case holding that the payment of benefits does not constitute a non-debt repayment under Article 742 of the Civil Code on the ground that the return of the benefits was not made based on the free will with the knowledge of the absence of the obligation to return, and further, the repayment of the debt under the invalid agreement in violation of the mandatory law cannot be deemed a non-debt repayment

[1] Articles 18 and 24 of the Labor Standards Act / [2] Articles 18 and 24 of the Labor Standards Act / [3] Article 742 of the Civil Act / [4] Articles 742 and 744 of the Civil Act, Article 24 of the Labor Standards Act

[1] [2] Supreme Court Decision 91Da26232 delivered on February 25, 1992 (Gong1992, 1128), Supreme Court Decision 95Da13104, 1311 delivered on December 6, 1996 (Gong1997Sang, 171), Supreme Court Decision 95Da2494, 24951 delivered on December 6, 1996 (Gong1997Sang, 177Sang, 177) / [3] Supreme Court Decision 76Da2212 delivered on December 14, 1976 (Gong197, 9819), Supreme Court Decision 87Da432 delivered on February 9, 198 (Gong198, 498), Supreme Court Decision 197Da19794 delivered on December 197, 199)

1. The term “the term “the term” means “the term” means “the term used in the term used in the term used in the term used in the term.

Do-young (Attorney Lee Young-ok, Counsel for defendant-appellee)

Suwon District Court Decision 95Na5629, 5636 delivered on October 13, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. On the first ground for appeal

The employer’s conclusion of a contract for liquidated damages or damages for nonperformance of a labor contract is null and void in violation of Article 24 of the Labor Standards Act, which is a mandatory provision (see Supreme Court Decision 77Da2479, Feb. 28, 1978). However, in a case where an employee who paid expenses to an enterprise and received entrusted education for an employee does not work for more than a certain period of compulsory employment from the date of completion of education, the employer shall first reimburse all or part of the relevant educational expenses borne by the enterprise, but the agreement for exemption is not an agreement for liquidated damages or damages prohibited under Article 24 of the Labor Standards Act (see Supreme Court Decision 91Da26232, Feb. 25, 1992).

According to the records, the defendant (Counterclaim plaintiff, hereinafter the defendant) entered the Korea Advanced Institute (KIST; hereinafter the "KIS") and the master plan course on April 1, 1984 as members of the Research Institute for the plaintiff (Counterclaim defendant; hereinafter the plaintiff). The defendant selected research tasks required by the plaintiff company for 3rd class research activities and joint research with KIST for 3rd class research activities, 197, 6th class and 9th class training programs for the plaintiff company (the above 9th class 6th 6th 6th 6th 6th 190 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 190 196th 1st 6th 6th 196th 196th 196th 6th 196th 6th 6th 6th 6th 1999.

The facts are as follows: (a) in light of the rules on the implementation of the training program for temporary agency workers of the Plaintiff company, the Plaintiff company is obligated to pay normal wages and bonuses to the Defendant, so long as the Plaintiff company has decided to treat the Defendant equally before the temporary placement of the Defendant for the long-term training period; (b) thus, even if the Plaintiff company paid normal wages and bonuses to the Defendant during the long-term training period, it cannot be said that the Plaintiff company has the right to claim the return of the Defendant by preferentially bearing the expenses it should originally bear to the Defendant; (c) therefore, if the Defendant fails to perform his compulsory service period after the completion of the training, the agreement that the Plaintiff company should return the amount of the above wages and bonuses to the Plaintiff company shall be null and void as a scheduled penalty or compensation for damages as prohibited under Article 24 of the Labor Standards Act.

Therefore, the conclusion that the court below's decision that the return agreement of the amount equivalent to the above amount violates Article 24 of the Labor Standards Act and is null and void is justifiable.

2. On the second ground for appeal

The non-performance under Article 742 of the Civil Act is established only where the payer has paid it at will with knowledge of the absence of the obligation. Even if the payer knew of the absence of the obligation, if there are circumstances to deem that the performance was made against his own free will, such as where the repayment was forced, or where the repayment was made inevitably in order to avoid de facto damage caused by the refusal of performance, the payer shall not lose his right to request the return (see Supreme Court Decision 87Da432 delivered on February 9, 198).

According to the records, although the defendant returned 13,50,00 won to the plaintiff company on September 16, 1994 exceeding the compulsory service period of 6,194,194,00 won, after he returned 13,50,000 won to the plaintiff company on October 10, 1994, the amount to be returned should be refunded, except for the amount to be refunded (5,194,000 won). However, according to the company's demand, the defendant must return the total amount of the expenses (13,50,000 won) corresponding to the remaining compulsory service period, it is hard to view that the defendant paid the plaintiff company's bonus and the amount to be refunded to the plaintiff company on September 16, 1994 because he did not meet the compulsory service period of 6,194,00 won, and it is difficult to view that the defendant did not have any other obligation to return the plaintiff's bonus and the amount to be refunded to the plaintiff company.

Therefore, the repayment by the Defendant to the Plaintiff in excess of the educational expenses cannot be deemed to constitute a non-debt repayment under Article 742 of the Civil Act.

In addition, as in this case, in violation of Article 24 of the Labor Standards Act, which is a mandatory provision while dispatching a long-term domestic training to the defendant, if the defendant did not work for the compulsory service period after the completion of the training, the plaintiff company entered into an invalid agreement that the plaintiff company shall return the wages and bonuses received from the plaintiff company during the training period. It cannot be said that the repayment of the debt based on the invalid agreement in violation of the above mandatory provision is a non-payment in accordance with

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles under Articles 742 and 744 of the Civil Act.

3. Conclusion

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)