wages of 208 Ghana70363 (principal office)

208 Gaz. 137686 (Counterclaim) Return, etc. of unjust enrichment

P (43 years old, South)

Attorney Park Jong-chul et al., Counsel for the defendant-appellant

D Engineering Corporation

Law Firm Cho & Lee, Counsel for the defendant-appellant

Attorney Lee Ji-hoon

December 12, 2008

January 16, 2009

1. The Defendant (Counterclaim Plaintiff) shall pay to the Plaintiff (Counterclaim Defendant) the amount of KRW 20,900,000 and the interest rate of KRW 20% per annum from May 27, 2008 to the date of full payment.

2. The defendant-Counterclaim plaintiff's counterclaim is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and counterclaims.

4. Paragraph 1 can be provisionally executed.

The purport of the main claim is as stated in paragraph (1) of this Article.

The claim for a counterclaim: The plaintiff (the counterclaim defendant; hereinafter the plaintiff) shall pay to the defendant (the defendant; hereinafter the plaintiff) 19,80,000 won with 5% per annum from the day following the service of the copy of the counterclaim to the day of the judgment, and 20% per annum from the next day to the day of complete payment.

A principal lawsuit and counterclaim shall also be deemed a principal lawsuit and counterclaim.

1. Basic facts

A. The defendant is an affiliate company of the Korea Railroad Corporation to engage in the maintenance business of rolling stock and its parts.

B. On September 13, 2004, the Plaintiff was employed as a full-time adviser of the Defendant Company, a commission position, and was appointed as a non-registered standing director of the Defendant Company on April 1, 2005. As a non-registered standing director, the Plaintiff conditioned the Plaintiff to immediately resign when the director was recommended by the Korea Railroad Corporation. The annual salary was set at KRW 69 million, and the term of office from April 1, 2005 to March 31, 2008. Meanwhile, the affiliates of the Korea Railroad Corporation, including the Defendant Company, after reducing the annual salary of executives since 2006, assessed the performance of the affiliates’ annual salary for the previous year, and paid a separate piece rate (the annual salary X-rate) in addition to the annual salary, to executives according to the relevant grade.

The plaintiff's annual salary was reduced by 45 million won from January 1, 2006.

D. The Defendant Company was determined as 44% of the performance rate of management evaluation in 2006, and the Plaintiff received the performance rate of KRW 19.8 million (45 million x 44%) in total from April 2007 to September 2007.

E. Since then, the Plaintiff’s annual salary was increased by KRW 50 million on October 5, 2007, and the Plaintiff retired from the Defendant Company on March 31, 2008. Meanwhile, the Defendant Company’s bonus payment rate in the year 2007 was determined as KRW 44% as in the year 2006.

【Reasons for Recognition】

2. Determination on the main claim

A. Determination on the cause of the claim

According to the above facts of recognition, on March 31, 2008, the defendant is obligated to pay the plaintiff, who retired from the defendant company, to the plaintiff on March 31, 2008, KRW 20,900,00 won = 45 million x 44% x 9/12 (in September from January to September 2007) x 55 million x 44% x 3/12 (three months from October 2007 to December) and damages for delay.

B. Judgment on the defendant's assertion

(1) As to this, the defendant asserts that the subject matter of piece rates of the defendant company is limited to the registered officers, but the plaintiff is merely a non-registered officer appointed without approval of the board of directors or the general meeting of shareholders, and there was no separate resolution on the payment of piece rates to non-registered officers. Therefore, the plaintiff asserts that the plaintiff is not entitled

(2) However, the following circumstances acknowledged by comprehensively considering the aforementioned evidence and the overall purport of the arguments in Gap evidence and evidence Nos. 7, 8, 9, 11, 15, and Eul evidence Nos. 4 and 15, namely, the plaintiff was appointed as a non-registered standing director on April 1, 2005 and performed the duties of the head of the customer management headquarters, etc. of the defendant company until March 31, 2008 after he was appointed as a non-registered standing director on April 1, 2008; the defendant company appointed the plaintiff as a non-registered standing director after obtaining full approval from the Korea Railroad Corporation as a major shareholder; the articles of incorporation and benefit regulations of the defendant company stipulate the difference of remuneration according to the distinction between the standing and non-standing standing director; the payment of remuneration does not vary depending on the registered director's method of payment, basis provision, and amount payment amount, etc.; the defendant company's performance of duties can not be seen as being paid as remuneration for the execution of duties (the plaintiff's performance of duties as above).

C. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff the total amount of 20,900,000 piece rates per annum 20% per annum from May 27, 2008 to the day of full payment, as requested by the plaintiff, to the day of full payment, according to the plaintiff's claim.

3. Judgment on the counterclaim

The Defendant, on the grounds stated in Paragraph 2(b) Item (1) of the above, filed a counterclaim by asserting that the Plaintiff was liable to return KRW 19,800,000 as unjust enrichment to the Defendant, on the ground that the Defendant Company’s payment of the performance-based bonus in the year 2006 to the Plaintiff was acquired without any legal ground. However, as seen in the judgment on the claim on the merits, the above performance-based bonus paid by the Plaintiff cannot be deemed to have been acquired without any legal ground, and thus, the Defendant’s above assertion cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Freeboard