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The defendant's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is as follows: (a) the Defendant, using 20 full-time workers, operated the “D company” as a “D company; and (b) paid retirement allowances as stipulated under the Guarantee of Workers’ Retirement Benefits Act to E, upon the request of E, to which the “D company” affiliated workers; (c) however, the lower court erred by misapprehending the legal doctrine
2. Determination
A. If the pertinent legal doctrine and the employee agreed to pay in advance a certain amount of money with the monthly pay or daily pay that the employee pays (hereinafter “retirement allowance installment agreement”), the agreement is null and void in violation of Article 8 of the Act on the Guarantee of Workers’ Retirement Benefits, unless it is acknowledged that the interim settlement of accounts for retirement benefits under the proviso of Article 8(2) of the Act on the Guarantee of Workers’ Retirement Benefits is an employee’s waiver of the right to claim a retirement allowance that occurs at the time of the final
(See Supreme Court en banc Decision 2007Da90760 Decided May 20, 201, Supreme Court Decision 2009Do8248 Decided October 13, 2011, and Supreme Court Decision 2012Da77006 Decided December 13, 2012, etc.). Meanwhile, inasmuch as an employer does not recognize the validity of the payment of a regular retirement allowance even though the employer actually paid the employee the nominal amount of a retirement allowance, and the validity of the payment of wages is not recognized, deeming that the employee should return the money in the name of the retirement allowance received to the employer as unjust enrichment is reasonable from the perspective of fairness.
(2) In light of the legislative intent of the retirement allowance system under the mandatory law, the aforementioned legal doctrine can only be applied on the premise that there exists an agreement on actual division of retirement allowances between the employer and the employee.
Therefore, even though the relevant agreement entered into between the employer and the employee is merely a determination of wages, the employer's retirement allowance.