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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
Reasons
1. Basic facts
A. The Defendant, under the trade name of “C” (hereinafter “instant place of business”), runs a service business, such as public sugar and health clubs, and the Plaintiff was employed by the Defendant and provided work from August 16, 2015 to August 15, 2016.
B. The Defendant was indicted for violating the Guarantee of Workers’ Retirement Benefits Act on the criminal facts that “the Plaintiff’s place of business, who had worked in the Defendant from August 16, 2015 to August 15, 2016, did not pay KRW 2,942,823 within 14 days from the date of retirement without agreement between the parties to the extension of the payment date,” and was sentenced to a suspended sentence of fine of KRW 300,00 and a suspended sentence of one year on November 30, 2018.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings
2. The parties' assertion
A. From August 16, 2015 to August 15, 2016, the Plaintiff served as the managing director in the instant workplace. As such, the Defendant is obligated to pay the retirement pay and its delay damages to the Plaintiff during the said period.
B. From August 16, 2015 to August 15, 2016, the Plaintiff agreed that the instant workplace will work in the form of a day-to-day job and not receive retirement allowances, and thus, the Defendant is not obliged to pay retirement allowances to the Defendant.
3. Determination
(a) According to Article 4(1) of the Guarantee of Workers' Retirement Benefits Act, an employer has a duty to establish a retirement benefit scheme to pay benefits to retired workers: Provided, That this shall not apply to workers whose continuous employment period is less than one year, or workers whose average weekly working hours are less than 15 hours;
Even if a daily worker is a daily worker, if it is reasonable to see that the daily relationship continues without simple employment, the employer shall pay the retirement allowance prescribed by the rules of employment and remuneration regulations corresponding to his/her employees, and the original worker must be the same.