209 Ghana 53945 Wages, etc.

A (68 years old, South)

Attorney Jeong Jin-ia, Counsel for the defendant-appellant

ChangeB (66 years old, South)

November 16, 2009

December 28, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 11,446,397 won with 20% interest per annum from March 5, 2009 to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the statements in Gap evidence 1, 2, Eul evidence 2, and 4.

A. From February 23, 2004 to February 18, 2009, the Plaintiff worked as an English instructor at a private teaching institute located in the Busan High-gu Busan High-gu, Busan High-gu, as an English instructor.

B. On August 1, 2004, the Plaintiff and the Defendant set working conditions by preparing an instructor employment contract, and set retirement allowances at 50% of the total monthly salary for one year during which the period of service was set. The Plaintiff retired from the above private teaching institute on February 18, 2009. At the time, the Plaintiff was not paid KRW 27,267,162 out of the wages from May 2008 to the date of retirement. Moreover, the Plaintiff’s average wage for 30 days during the immediately preceding three months was KRW 2,836,050.

D. After receiving KRW 3,985,475 from the Defendant, the Plaintiff filed a petition with the Administrator of the Busan Regional Labor Agency regarding the delayed payment of the aforementioned wages and retirement allowances. On April 14, 2009, the Administrator of the Busan Regional Labor Agency confirmed that the Plaintiff was not receiving KRW 23,281,687 (i.e., KRW 27,267,162 - 3,985,475) and retirement allowances from the Defendant.

E. On April 30, 2009, the Defendant paid KRW 3,000,000 to the Plaintiff.

F. The Plaintiff and the Defendant agreed on the unpaid wages and retirement allowances on June 1, 2009, which were after the Plaintiff filed the instant lawsuit (hereinafter referred to as “instant agreement”) as follows.

(1) The amount payable shall be KRW 6,986,475 (including wages in arrears and retirement allowances) of the amount agreed upon at the time of retirement, which is KRW 25,00,000,000, limited to the amount paid 31,985,475 (including wages in arrears and retirement allowances). No objection shall be raised thereafter.

②위 금액 지급방법은 이 사건 소송과 관련하여 원고가 근무한 ◇ 매출채권을 압류한 사건번호 2009 카단8225 채권가압류를 2009. 6. 1. 취소하여 매출채권이 입금되는 날 위 약정금액 25,000,000원을 지급한다.

③ The payment of the above amount is anticipated to be made by the Plaintiff and the Defendant on June 3, 2009 or on April 4, 2009, and the Plaintiff shall prepare documents for cancellation of the lawsuit filed in relation to this case and present them to the court at the same time as the deposit is made.

4. To prepare four copies of the above documents, each one shall be the same, and a copy shall be submitted to the full bench in charge of the instant case to withdraw the litigation, and a copy shall be submitted to the labor inspector in relation to the instant case of the Busan Regional Labor Administration.

⑤ As to the contents discussed in relation to the instant case after the vehicle, the Plaintiff shall not raise any civil or criminal objection. When the said agreed promise is reached, the Plaintiff shall be held liable for civil or criminal liability.

6. Expenses incurred in the withdrawal of the instant case shall be borne by the Defendant.

G. After the instant agreement, the Defendant paid KRW 25,00,000 to the Plaintiff on June 8, 2009, KRW 14,000,000 on June 9, 2009, and KRW 2,000,000 on July 29, 2009.

2. Determination

(a) Amount of accrued wages and retirement allowances;

(1) Amount under laws and regulations

As seen earlier, the Plaintiff’s wages that were not paid at the time of retirement constitute 27,267,162.

Meanwhile, according to Articles 4(1) and 5-2 and 8(3) of the Guarantee of Workers' Retirement Benefits Act, an employer should establish one or more of the retirement benefits scheme to pay benefits to a retired employee. In a case where an employer fails to establish the retirement benefits scheme, an employee is deemed to have established the retirement benefits scheme that allows him/her to pay the average wage of at least 30 days per year for the period of his/her continuous service as a retirement allowance. Therefore, an employee may be entitled to receive the average wage of at least 30 days per year as a retirement allowance for at least one year. However, according to the foregoing, the Plaintiff’s continuous service period is 1,823 days from February 23, 2004 to February 18, 2009, average wage is 2,836,050 won, and the minimum wage of the Plaintiff’s retirement benefits recognized as the Guarantee of Workers’ Retirement Benefits is 14,164,710 won (=1823/365 x 2836,147,205).7

(2) Amount agreed upon by the instant agreement

According to the above facts, the Plaintiff and the Defendant agreed to receive KRW 25,000,000 as the amount of wages and retirement allowances, and thereafter, received KRW 25,00,000 in fact. Accordingly, the Plaintiff received all wages and retirement allowances according to the agreement of this case.

B. Validity of the instant agreement

Although the Plaintiff’s claim against the Defendant, which was recognized by the Act, has not yet been partially repaid, the existence of the Plaintiff’s claim against the Defendant is determined by whether the agreement of this case is valid, inasmuch as the Plaintiff’s claim against the Defendant was fully repaid by the agreement of this case between the Plaintiff and the Defendant. Accordingly, we examine whether the agreement of this case is valid or not

(1) Whether it is invalid against the Guarantee of Workers' Retirement Benefits Act

The provisions of the Guarantee of Workers' Retirement Benefits Act concerning retirement benefits stipulate the lowest limit of the amount of retirement benefits to be paid to the retired employee. Thus, in a case where there exists a separate agreement between employers and employees to choose not to pay the benefits that may be included in the average wage under the Guarantee of Workers' Retirement Benefits Act based on the nature of the benefits, if the amount of retirement benefits calculated under the agreement exceeds the lowest limit guaranteed by the Guarantee of Workers' Retirement Benefits Act, such agreement shall not be deemed null and void as it violates Article 8 of the Guarantee of Workers' Retirement Benefits Act. However, if the amount of retirement benefits calculated under the agreement falls short of the lowest limit guaranteed by the Guarantee of Workers' Retirement Benefits Act, such agreement is null and void as it violates Article 8 of the Guarantee of Workers' Retirement Benefits Act (see Supreme Court Decision 2005Da25113, Jul. 12, 2007). However, the purport of compelling the lowest limit of the Guarantee of Workers' Retirement Benefits Act as above in our legal system based on the private autonomy is to protect the employee's right to claim retirement benefits due to use-subsidiary relationship, and thus the agreement is not null and void.

According to the above facts, the agreement of this case is an agreement that receives less than the aggregate of the unpaid wages and retirement allowances stipulated in the Guarantee of Workers' Retirement Benefits Act as the balance of wages and retirement allowances, and thus, it is deemed that the amount below the lowest limit guaranteed by the Guarantee of Workers' Retirement Benefits is determined as retirement allowances. However, the agreement of this case was concluded after the plaintiff's retirement. However, it is insufficient to view that the agreement of this case is not based on the fact that the defendant delayed the payment of wages and retirement allowances, and that the amount of the agreement of this case is determined based on the calculation method of retirement allowances under the initial contract against the Guarantee of Workers' Retirement Benefits Act. Rather, the agreement of this case is concluded under the agreement of this case, which is delegated to the attorney who is an attorney, and is seeking the payment of unpaid wages and retirement allowances based on the Guarantee of Workers' Retirement Benefits Act, and therefore, it is possible to sufficiently recognize his right, such as the amount of retirement allowances recognized under the above Act, and exercise it sufficiently. It

(2) Whether the defendant's delay is null and void

As seen earlier, in the instant agreement, the Defendant immediately paid to the Plaintiff KRW 25,00,000 upon the Plaintiff’s withdrawal of provisional attachment or cancellation of its enforcement on June 1, 2009. However, the Plaintiff paid KRW 9,00,000 on June 8, 2009, KRW 14,000,000 on June 9, 2009, and KRW 2,00,000 on July 29, 2009. Such payment, in particular, payment on July 29, 200, appears to have been later than the time stipulated in the instant agreement. However, it is difficult to deem that the Plaintiff reached the instant agreement by the Defendant’s deception solely on the grounds of such delay, and there is no other evidence to acknowledge this otherwise.

In addition, the agreement of this case, as prescribed in paragraph 5, has been held liable for civil and criminal liability in the event of the promise. However, in light of the fact that there was no objection to the subsequent amount as set forth in paragraph 1, it is insufficient to deem that the agreement of this case was concluded to nullify the agreement of this case solely on the ground that the agreement of this case was concluded by the defendant when the period of repayment expires, and no other evidence exists

Therefore, the agreement of this case cannot be deemed null and void solely on the ground that the Defendant delayed the implementation of the agreement of this case.

3. Conclusion

Therefore, the agreement of this case is valid, and the defendant's wage and retirement allowance was modified according to the agreement of this case. However, the agreement of this case set the remaining wage and retirement allowance at KRW 25,000,000, and the defendant paid to the plaintiff all of KRW 25,000,00, so the defendant's wage and retirement allowance obligation to the plaintiff does not remain. Therefore, the plaintiff's claim of this case is dismissed as there is no reason.

Judges Lee Jong-soo

1) (1) An employer establishes one or more retirement benefit systems to pay wages to retired workers.

employees who have been employed for less than one year, or on average of four weeks, contractual work hours per week;

This shall not apply to workers under time.

(2) In setting up a retirement benefit scheme pursuant to the provisions of paragraph (1), no distinction shall be made within one business.

(c)

(3) A different type of retirement benefit scheme in which an employer selects or selects a different type of retirement benefit scheme.

Where there is a labor union organized by a majority of workers in the business, such union.

Where there is no labor union organized by a majority of workers, a majority of workers (hereinafter referred to as “representative of workers”).

(d) have obtained the consent of the Company.

(4) Where an employer intends to change the details of the retirement benefit scheme selected or changed under paragraph (3).

The opinion of the representative of workers shall be heard: Provided, That if he/she intends to change a disadvantage to a worker, his/her work

The consent of the senior representative shall be obtained.

2) Notwithstanding Article 4(1), if an employer fails to establish a retirement benefit scheme, the provisions of Article 8 shall apply.

The retirement allowance system shall be deemed to have been established.

3) (1) An employer who intends to set up a retirement allowance system shall set aside an average wage of not less than 30 days per year of continuous employment.

A system that can be paid to the retired employee must be established.

(2) Notwithstanding the provisions of paragraph (1), if requested by a worker, the employer shall do so before the worker retires.

A worker may settle accounts of a retirement allowance for his/her continuous service period and pay it in advance. In such cases, a prior settlement of accounts may be made.

The continuous service period for the calculation of a retirement allowance after such payment shall be newly reckoned from the time of settlement of accounts.