[1] In a case where an employer and an employee agreed to pay a certain amount in advance with a monthly salary or daily allowance paid by the employee, the validity of the agreement on division of the retirement allowance (in principle null and void), and whether the amount in the name of the retirement allowance already paid under the invalid agreement constitutes unjust enrichment (affirmative)

[2] In a case where an employer already paid a retirement allowance to an employee, but the employer has no effect as a retirement allowance payment, and thus the employer has a claim for return of unjust enrichment equivalent to the same amount, whether such claim may be offset against the employee’s retirement allowance claim (affirmative), and the scope of offset permissible

[1] [Majority Opinion] If an employer and an employee agreed to pay a certain amount of retirement allowance in advance with a monthly or daily allowance paid by the employee (hereinafter “retirement allowance installment agreement”), such agreement is null and void as it gives up the employee’s right to claim a retirement allowance at the time of the final retirement in violation of Article 34(3) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005), unless it is acknowledged as an interim settlement of the retirement allowance under the main sentence of Article 34(3) of the same Act, and thus, it is null and void as it violates Article 34 of the same Act, which is a mandatory law, even if the employer paid the amount in the name of the retirement allowance to the employee under the agreement on the installment of the retirement allowance, even if it is based on the premise that the above agreement is valid where the employer actually pays the amount in advance separately from the monthly or daily allowance paid by the employee during the period of the employment relationship, and thus, the employer is not obligated to pay the amount under the same legal nature of the above payment of retirement allowance under the agreement.

[Dissenting Opinion by Justice Kim Young-ran, Justice Kim Nung-hwan, and Justice Kim Nung-hwan] Under the so-called retirement allowance division agreement, the amount paid to an employee as a monthly or daily retirement allowance can not be first paid during the existence of the employment contract. Second, even though the employer is obligated to pay the employee continuously and periodically, it is not a retirement allowance, it is the kind of wage paid as compensation for work. Of these, the agreement on division of retirement allowance is the essential element that the employer pays the employee a certain amount per month or daily amount and the amount should be regarded as a retirement allowance. Of these, the part that should be invalidated and invalidated is only the part that the employer permits the employee to waive the right to claim a retirement allowance from the employee in advance in violation of the mandatory law. However, the agreement on the payment of a certain amount per month or daily amount to the employee is valid. Thus, in light of the fact that the right to claim a retirement allowance after automatic right to claim a retirement allowance can not be seen as being paid as a retirement allowance under the above agreement, and thus, it can not be viewed as a final payment of the employee’s wage.

[2] [Majority Opinion] The main text of Article 42(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) provides that wages shall be paid in full to workers in currency, so it is a principle that the employer does not offset the worker’s wage claims with the worker’s claims. This is also to protect the worker in economic and social subordinate relationship. This is also the same inasmuch as the worker’s retirement allowances also have the nature of wages. However, in cases where the worker has paid wages due to an error in calculation, if the worker requests wages after his/her retirement, the worker requests wages or retirement allowances which he/she did not receive during his/her employment, or even if the worker claims wages during his/her employment, the time of exercising his/her right of offset and the period of exercising his/her right of offset are close to that of wage settlement, and the employer’s prior notice of the amount and method of offset, which is equivalent to 200 of the employer’s automatic wage claim and retirement allowance claim are not effective as offset against the worker’s claim.

[Dissenting Opinion by Justice Yang Sung-tae, Justice Lee Hong-hoon, Justice Yang Chang-soo, and Justice Yang Chang-soo] The main basis for which an offset is exceptionally permitted is to be paid in excess of the amount of wages arising out of error in the calculation, etc. As such, there is no concern over undermining the stability of workers’ economic and living. However, when there is a problem in the return of unjust enrichment equivalent to the amount of a retirement allowance by paying money in the name of the retirement allowance which cannot be recognized as effective as the payment of the retirement allowance, it cannot be deemed that the payment of wages or retirement allowances exceeded the amount of the retirement allowance due to error in the calculation, etc. In addition, there is a large amount of money to be considered as unjust enrichment in relation to recognizing the nominal amount of a retirement allowance as unjust enrichment. In addition, there is no need to dispute between the parties in relation to the recognition of unjust enrichment in the name of the retirement allowance, and even in such a case, if an employer grants ex officio deduction, it is unreasonable to interpret the amount of the retirement allowance to be paid in excess of the original purpose of the system and to the employee.

[1] Articles 18 (see current Article 2 (1) 5), 34 (1) (see current Article 8 (1)), and 34 (3) (see current Article 8 (2) of the Guarantee of Workers' Retirement Benefits Act), Article 741 of the Civil Act / [2] Articles 18 (1) 5, 34 (1) (see current Article 8 (1) of the Guarantee of Workers' Retirement Benefits Act) and (3) (see current Article 8 (2) of the Guarantee of Workers' Retirement Benefits Act), Article 42 (1) (see current Article 43 (1) of the Guarantee of Workers' Retirement Benefits Act), Article 42 (1) (see current Article 492, Article 497 (2) of the Civil Act, Article 741 of the Civil Act / [3] Article 18 (2) of the former Labor Standards Act (Amended by Act No. 7379, Jan. 27, 2005; Act No. 8 (1) of the Guarantee of Workers' Retirement Benefits)

[1] Supreme Court Decision 98Da34393 delivered on September 3, 199 (Gong1999Ha, 2022) Supreme Court Decision 2000Da27671 Delivered on July 26, 2002 (Gong2002Ha, 2031) Supreme Court Decision 2006Da4829 Delivered on December 8, 2006 (Gong2004Da833 delivered on March 30, 207 (Gong2007Sang, 614 delivered on August 23, 2007), Supreme Court Decision 207Do4171 Delivered on August 23, 207 (Gong2007Ha, 614 delivered on April 29, 205) / [2] Supreme Court Decision 2007Da3829 delivered on May 8, 190, Supreme Court Decision 209Da38194 delivered on March 29, 20194

Plaintiff 1 and 25 others (Law Firm Cheongan, Attorneys O Dong-dong et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Cho Young-ro et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na86698 decided Nov. 30, 2007

All of the judgment below against the plaintiffs except the plaintiffs 6, 7, and 17 are reversed, and this part of the case is remanded to the Seoul High Court. All of the appeals by plaintiffs 6, 7, and 17 are dismissed. The costs of appeal by plaintiffs 6, 7, and 17 are assessed against the same plaintiffs.

The grounds of appeal are examined.

1. As to whether unjust enrichment from money in the name of retirement pay is established

A. Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005; hereinafter “the Act”) provides that “an employer shall establish a system under which an employee may pay an employee who retires an average wage of not less than 30 days for one year of continuous employment: Provided, That this shall not apply where the number of years of employment is less than one year, but where an employee makes a request, notwithstanding the provisions of paragraph (1), the employer may settle and pay a retirement allowance for the period of continuous employment before the employee retires.” The “retirement allowance” under the above provision of the Act provides that the employee may, notwithstanding the provisions of paragraph (3), settle and pay a retirement allowance for the period of continuous employment before the employee retires, without paying a part of the wage for the provision of employment, and with the same as the basic financial resources, the employee is paid in lump sum when he retires and has worked for not less than one year (see Supreme Court Decision 2004Da8333, Mar. 30, 2007).

Therefore, if an employer and an employee agreed to pay in advance a certain amount of money with a monthly or daily allowance paid by the employee (hereinafter “retirement allowance installment agreement”), such agreement is null and void as it gives up in advance the employee’s right to claim a retirement allowance accrued at the time of the final retirement unless it is acknowledged as an interim settlement of the retirement allowance under the main sentence of Article 34(3) of the Act, and is in violation of Article 34 of the Act, which is a mandatory law (see, e.g., Supreme Court Decisions 2000Da27671, Jul. 26, 2002; 2007Do4171, Aug. 23, 2007). As a result, even if the employer paid in advance a certain amount of money under the name of the employee pursuant to the agreement on the division of retirement allowance, the agreement is null and void as a retirement allowance.

B. Meanwhile, wages stipulated under Article 18 of the Act mean that an employer shall pay an employee a continuous and regular amount of money paid in compensation for work, and an employer shall be liable to pay the amount in accordance with collective agreements, rules of employment, wage regulations, employment contracts, labor contracts, labor practices, etc. (see, e.g., Supreme Court Decisions 98Da34393, Sept. 3, 199; 2006Da48229, Dec. 8, 2006). However, in cases where an employer, while a labor relationship is in progress, paid a retirement allowance in advance separately from a monthly pay or daily pay under the agreement, such agreement is valid only under the premise that the said agreement is valid, and if that is not effective as the payment of a retirement allowance for that reason, the employer is not obligated to pay the amount equivalent to the retirement allowance under its original name, and thus, the nominal amount of retirement allowance already paid under the above agreement cannot be deemed to constitute “wages paid for work” under Article 18 of the Act.

If an employer does not recognize the validity of the payment of retirement allowances as well as the validity of the payment of retirement allowances as wages under Article 18 of the Act even though the employer actually paid money to an employee, it is reasonable from the perspective of fairness to view that an employer should return to the employer the money in the name of retirement allowances received by an employee as unjust enrichment, while an employee suffers losses equivalent to the above money by paying the same amount to an employee without any legal ground, while an employee has earned profits equivalent to the same amount.

C. In full view of the circumstances acknowledged by the evidence duly admitted, the lower court determined that the Defendant’s payment of money in the name of retirement benefits after entering into an agreement on the division of retirement benefits with the Plaintiffs who are employees is invalid as an interim payment of retirement benefits or as a payment of retirement allowances, and that the said money in the name of retirement benefits constitutes unjust enrichment to be returned to the Plaintiffs to the Defendant.

Such determination by the court below is just in light of the above legal principles, and it did not err by misapprehending the legal principles as to wages, retirement allowances, and unjust enrichment, as alleged in the grounds of appeal

2. As to the granting of set-off

A. According to the main text of Article 42(1) of the Act, since wages are paid in full to workers in currency, it is in principle that an employer does not set off against workers’ wage claims with the claims held by the employer against the worker. This is intended to protect workers in economic and social subordinate relationship. This also applies to retirement allowances that the worker is paid in excess of wages due to a mistake in calculation (see, e.g., Supreme Court Decision 88Meu26413, May 8, 1990). However, in cases where the worker paid wages in excess of wages due to a mistake in calculation, the worker requests the wages or retirement allowances which he/she had not received after his/her retirement, or even if the worker claims wages during his/her employment, the above excess time when the worker exercises his/her right of set-off and the period of exercising his/her right of set-off is close to the extent that the employer does not lose the substance of adjustment, and the amount and method of set-off by the employer is not likely to undermine the stability of workers’ economic life, such as automatic claims and retirement allowances.

This is because the unjust enrichment return claim equivalent to the amount already paid by the employer as retirement allowance and the employee's retirement allowance claim are directly related to the payment of retirement allowance, which is the later wage, and the payment of the amount is different in the nature of the payment of retirement allowance, and since there is no different in the nature of the payment of retirement allowance, the two are closely indivisible relations between each other. Furthermore, set-off based on unjust enrichment return claim under the name of retirement allowance does not mean that the employer should not pay retirement allowance to the employee, but it is merely that the amount of retirement allowance already paid from the retirement allowance to be paid as retirement of the employee would be deducted from the amount of retirement allowance already paid as retirement allowance to the employee, which is natural in terms of equity, and thus, it cannot be said to be contrary to the principle of

Moreover, in this case, not only is the one in which the relevant employee is already retired and is not in a labor contract that is no longer directly based on economic life, but also is not an employer's retirement allowance claim against the employee with a claim that is entirely irrelevant to the employment relationship of the previous employer. Therefore, such offset does not result in the impairment of the stability of the economic life of the employee.

In the end, it is nothing more than a method of settlement and adjustment of the amount of retirement benefits to be paid by an employer due to retirement of an employee, and it is nothing more than a method of settlement and adjustment of the amount of retirement benefits to be paid by the employer.

B. Meanwhile, Article 246(1)5 of the Civil Execution Act [Article 246(1)4 of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005)] provides that "an amount equivalent to 1/2 of the retirement allowance and other wage claims with similar nature" shall be prohibited from seizure as a claim for the public interest of the debtor's livelihood security, and for social policy reasons. Article 497 of the Civil Act provides that "an amount equivalent to 1/2 of the retirement allowance and other wage claims with similar nature," and Article 497 of the Civil Act provides that "an obligor of the prohibited from seizure shall not oppose a creditor against offset." Thus, it is reasonable to deem that offsetting the employee's retirement allowance claims with automatic claim equivalent to the amount paid as retirement allowance by the employer as retirement allowance claim is

C. The lower court accepted the Defendant’s defense of offsetting the Plaintiffs’ retirement allowance claim with unjust enrichment return claim equivalent to the Defendant’s retirement allowance claim, and rejected the part of the Plaintiffs’ claim corresponding thereto. However, in light of the above legal doctrine, the Defendant’s defense of offsetting the Plaintiffs’ retirement allowance claim as the employee’s retirement allowance claim, the lower court allowed a set-off only to the extent exceeding the amount equivalent to one half of the retirement allowance claim, which is limited to set-off, which is limited by the lower court.

However, according to the records, Plaintiff 6, 7, and 17 did not reach 1/2 of their retirement allowance claims amount, while the remaining plaintiffs except the above plaintiffs can be found to have exceeded 1/2 of their retirement allowance claims amount. Thus, it is justifiable for the court below to accept the Defendant’s counterclaim against Plaintiff 6, 7, and 17 in full, but it is erroneous for the court below to have erred by misapprehending the legal principles on the prohibition of seizure and set-off restriction.

3. Therefore, the part of the judgment of the court below against the plaintiffs except for plaintiffs 6, 7, and 17 is reversed, and that part of the case is remanded to the court below. All appeals by plaintiffs 6, 7, and 17 are dismissed. The costs of appeal by the plaintiffs 6, 7, and 17 are assessed against the losing party. However, there are separate opinions by Justice Kim Young-ran, Justice Kim Nung-hwan, and Justice Kim Nung-hwan (the part dismissing the appeal) and dissenting opinions (the part dismissing the appeal) as to the denial of offset, and except there are separate opinions by Justice Yang Sung-tae, Justice Lee Hong-hoon, and Justice Yang Chang-soo and Justice Yang Chang-soo (the part dismissing the appeal) and dissenting opinions (the part dismissing the appeal

4. Separate opinion and dissenting opinion by Justice Kim Young-ran and Justice Kim Nung-hwan

A. The retirement allowance under Article 34 of the Act is, in essence, paid in lump sum at the time when an employer has worked for not less than one year and has worked for not less than one year as basic financial resources. Thus, the right to claim a retirement allowance is not likely to arise during the existence of an employment contract unless the interim settlement of accounts for a retirement allowance is effective. The wages under Article 18 of the Act refer to all kinds of money paid by an employer as remuneration for work and are continuously and regularly paid to an employee and are obliged by the employer to pay under the collective agreement, rules of employment, salary rules, labor contract, labor contract, labor contract, etc. In particular, as long as the amount paid to an employee meets the above requirements, the right to claim a retirement allowance is a wage and its name is not an issue (see, e.g., Supreme Court Decision 90Meu19647, Dec. 7, 190).

In light of the so-called retirement allowance agreement on the premise of this agreement, the amount of money paid to an employee as a retirement allowance together with a monthly pay or daily pay or included in the agreement shall not be a retirement allowance in the first place in that the amount is paid during the existence of the employment contract. Second, even though an employer is obligated to pay according to the agreement, it shall be deemed as a kind of wage paid as a remuneration for work in that it is not a retirement allowance. The reasons are as follows.

The essential element of the agreement on the division of retirement allowances is that an employer pays a certain amount of money to an employee every month or every day and that the amount of money should be paid as retirement allowances. Among them, the part that must be invalidated by violating the law is limited to the portion that should be paid as retirement allowances. This is because, as pointed out by the majority opinion, the agreement that an employee gives up his/her right to claim retirement allowances at the time of retirement in advance in violation of the mandatory law is valid. However, the agreement that an employer pays a certain amount of money per month or every day to an employee is valid. Thus, in light of the fact that the amount of monthly or every day paid to an employee is a late payment of retirement allowances, it shall be deemed that the employer pays the amount of money to be paid every month or every day in accordance with the effective agreement as above, and therefore, regardless of its name,

As can be seen, since the amount paid to an employee under the agreement on the division of retirement pay cannot be a retirement allowance, and the amount paid to an employee is merely the same as a wage, it cannot be an unjust enrichment since the employee’s payment of such amount cannot be a legitimate payment of wages under the labor contract including the agreement on the division of retirement pay, and therefore, there is no room for establishing a set-off defense against the employee’s claim for retirement pay, based on the premise that the employer has the right to claim the return of the employee, at the time of

However, the Majority Opinion’s purport is that the payment of a retirement allowance in advance before retirement is null and void unless it is recognized as an interim settlement of the retirement allowance, and the payment in advance cannot be recognized as effective as a retirement allowance and does not constitute wages. However, it is unreasonable that it focuses on the aspect of purely installment payment of a retirement allowance among the two aspects of the aforementioned agreement on retirement allowance division, and it cannot be deemed that the amount paid under the agreement is excessive or out of the aspect of having the substance as a wage regardless of its title. In addition, the Majority Opinion argues that the entire agreement on retirement allowance division is null and void as it does not have any legal ground, and therefore, it is possible to offset the amount that the employee received under the agreement with the right to claim a return of unjust enrichment on the part of the employer at the time of the final retirement of the employee into a set-off claim with the same claim held by the employee. However, this does not differ from the previous agreement on retirement allowance payment in advance, and it does not conflict with the Majority Opinion’s intent to deny the validity of the agreement on retirement allowance payment.

B. In the instant case, the lower court accepted the Defendant’s defense of setting-off, on the premise that the Defendant’s money paid to the Plaintiffs under the agreement on the installment of retirement allowances does not constitute wages, deeming that the Plaintiffs were obligated to return this money to the Defendant as unjust enrichment. However, in light of the legal doctrine as seen earlier, the lower court erred by misapprehending the legal doctrine as to retirement allowances agreement or wages, thereby adversely affecting the conclusion of the judgment. Of the lower judgment, the part against the Plaintiffs should be reversed on the ground

5. Appointment and dissenting opinion by Justice Yang Sung-tae, Justice Lee Hong-hoon, and Justice Yang Chang-soo

A. Article 32(3) of the Constitution provides that “The standards of working conditions shall be determined by the Act in order to guarantee human dignity.” The term “working conditions” means conditions for workers to provide labor and receive wages under labor contracts, such as wages and their payment methods, hours of employment and break time, safety facilities, sanitary facilities, accident compensation, etc. The term “the standards of working conditions” means that the law on working conditions set the minimum limit on the working conditions (see, e.g., Constitutional Court en banc Decision 2002Hun-Ba51, Jul. 24, 2003). Pursuant to Article 32(3) of the Constitution on the legal principle of working conditions, the Labor Standards Act aims to ensure and improve the basic livelihood of workers and ensure the balanced development of the national economy by prescribing the standards of working conditions.

B. As pointed out in the majority opinion, retirement allowances stipulated in Article 34 of the Act are essentially characterized by the post-paid wage, but in addition to the nature as the post-paid wage, it also has the characteristics of social security benefit as a meritorious compensation (see Supreme Court Decisions 94Da36186 delivered on October 12, 1995; 2002Da29442 delivered on September 6, 2002, etc.).

In addition, wages are all money and valuables paid for work, which constitute the basis for the survival of ordinary workers and their dependents, and therefore, they are recognized as the core part of working conditions and also have several provisions related to the protection of wages in the Labor Standards Act. In particular, the main text of Article 42(1) of the Act declares the so-called principle of full payment of wages by stipulating that “wages shall be paid directly to workers in currency.” The purport of the principle is to prevent an employer from unilaterally deducting wages from the full amount of wages so as not to threaten the economic life of workers by allowing an employer to clearly deduct the full amount of wages from the full amount of wages. Therefore, it is prohibited in principle that an employer unilaterally set off against the employee’s wage claims with the employer’s claims against the employee is prohibited (see, e.g., Supreme Court Decision 2001Da25184, Oct. 23, 201). This legal doctrine likewise applies

C. However, as stated in the Majority Opinion, even if set-off is exceptionally permitted within a certain limit in order to settle and adjust the excess wages paid in cases where wages were paid in excess due to mistake in calculation, etc., as set forth in the Majority Opinion, the Majority Opinion that exceptionally set-off is permissible in cases where an employer has already paid money in the name of retirement allowance to the employee, but the employer has no effect as retirement allowance payment, and the employer has a claim for return of unjust enrichment equivalent to the same amount as the employee’s retirement allowance claim based on the automatic claim

First, despite the principle of full payment of the amount of retirement allowances under the main text of Article 42(1) of the Act, exceptionally allowed a set-off in certain cases is based on the premise that the time of set-off is reasonably close as much as the time when the amount exceeds the amount of wages, the settlement of wages, and the substance of adjustment when the amount and method are not lost when the amount and method are paid in advance and there is no risk of undermining the economic stability of workers by pre-announcement of the amount and method. However, as seen in the instant case, the fact that the payment of money in the name of a retirement allowance which cannot be recognized as effective as the payment of retirement allowances is caused by intentional payment of retirement allowances in advance pursuant to the so-called “retirement allowance installment agreement” which was made in advance, and thus, the legal nature of the case where the amount exceeds the amount due to mistake in the calculation as seen above is clearly different. Therefore, it cannot be readily concluded that both the unjust enrichment claim in an amount already paid as retirement allowances and the retirement allowance claim of the employee are closely indivisible.

Secondly, as recognized in the Supreme Court precedents, retirement allowances have the nature of social security benefits as well as compensation as social security benefits, and Article 34 of the Act permits interim settlement of retirement allowances under strict conditions, as well as statutory retirement benefits. In determining the permissible scope of offset against several claims including retirement allowances, the nature of retirement allowances as social security benefits and compensation for meritorious services should be sufficiently taken into account in determining the permissible scope of offset against retirement allowances under strict conditions. In our society, most recently, an aging society is under way, but its personal and social burden is increased as it is insufficient to prepare for old age. In particular, from the perspective of the expansion of the annual salary system, reduction of the number of years of service, etc., the number of employees’ livelihood is relatively worse even after the payment of retirement allowances under the legal welfare system, in cases of the remaining employees except for public officials or private school teachers, etc. who are protected by the legal welfare system even after their retirement benefits after their retirement, the Majority Opinion considers that the amount of retirement allowances paid out of the amount of retirement allowances paid to them in the form of an employer’s daily wage payment can be denied.

Therefore, the Majority Opinion that permits a set-off in relation to whether it is permissible to offset the right to claim the return of wages or retirement allowances that an employer has paid in excess of his/her employee after his/her retirement, with regard to whether it is permitted to offset the right to claim the return of such wages or retirement allowances, is problematic in that the nature of the remaining social security benefits and compensation for meritorious services that are excessively emphasized only. In addition, the Majority Opinion’s position that allow a set-off is unreasonable in terms of equity, and that it does not result in a result of undermining the economic stability of the employee as it does not exceed an employment contract that is directly based on economic life, and that it does not result in any harm to the economic stability of the employee, as it is no longer in a labor contract that is directly based on the economic life, as the social security benefits and compensation for contribution of the retirement allowance.

Third, the majority opinion takes a position to allow a set-off as seen earlier, and on the basis of each provision of Article 246(1)5 of the Civil Execution Act and Article 497 of the Civil Act, it takes a position that offsetting a claim for return of unjust enrichment equivalent to the amount paid by an employer as a retirement allowance to an employee with an automatic claim shall be limited to an amount exceeding 1/2 of the retirement allowance claim. However, considering the legislative purport of Article 246(1)5 of the Civil Execution Act that prohibits seizure in the sense that Article 246(1)5 of the Civil Execution Act prohibits seizure in the sense of specifying the principle of social state that protects the obligor and aims for social justice in consideration of social policy considerations, but maintains the standard of 1/2 of the retirement allowance claim in terms of harmony with the interests of the general creditors, unlike the general creditors, it is more reasonable to follow the principle of total payment of wages under the main sentence of Article 42(

Ultimately, the main ground for allowing an exceptionally set-off in relation to the settlement of accounts when the amount is paid in excess of wages is the excessive payer of wages arising from errors in the calculation, etc., and there is no risk of undermining the stability of workers’ economic and living. However, as in the instant case, in a case where the issue is the return of unjust enrichment equivalent to the amount due to the payment of retirement allowances, which cannot be recognized as effective as the payment of retirement allowances, it cannot be seen as a case where the payment of wages or retirement allowances is made in excess of the amount due to errors in the calculation, etc., and there are many cases where the amount is so large as to be close to the amount of retirement allowances that should be paid properly, and there is a possibility of threatening the stability of workers’ economic and living. In addition, even in such a case, there is no choice of dispute between the parties in relation to the recognition of unjust enrichment in the name of retirement allowances, which is the case where the employer permits a set-off and the unilateral deduction is excessively unfavorable to workers beyond the original purpose of the retirement allowance system and the institutional intent prohibiting the set-off in relation with the payment.

D. In light of the above legal principles, the court below rejected the part of the plaintiffs' claim against the defendant by allowing the offset against the whole amount of retirement allowance claims against the defendant with unjust enrichment return claims equivalent to the amount of retirement allowance paid to the plaintiffs in determining the defendant's counterclaim for offset. In so determining, the court below erred by misapprehending the legal principles on prohibition of offset, which affected the conclusion of the judgment.

As above, I express my opinion and Dissenting Opinion.

Chief Justice Lee Young-ran (Presiding Justice)