[1] In a case where an employer agrees to pay a certain amount of money as retirement allowance in the monthly wage paid by the employee and the employer, whether it is effective as retirement allowance payment under Article 34(1) of the former Labor Standards Act (negative)

[2] Where an employer and an employee agreed to pay a certain amount under the name of retirement allowance in the monthly wage paid in advance, whether it can be deemed that the employee agreed not to receive a retirement allowance or expressed his/her intent to not pay a retirement allowance to the employer who did not pay a retirement allowance (negative)

[1] Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) / [2] Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005)

[1] Supreme Court Decision 96Da24699 delivered on March 24, 1998 (Gong1998Sang, 1131) Supreme Court Decision 2002Do2211 Delivered on July 12, 2002 (Gong2002Ha, 2008)

Defendant

Defendant

Law Firm Lee & Lee, Attorney Lee In-ok

Incheon District Court Decision 2006No2144 Decided January 19, 2007

The appeal is dismissed.

The grounds of appeal are examined.

Article 34(1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) provides that a retirement allowance shall be paid to a retired employee, and the retirement allowance shall be paid to an employee only by the requirement of termination of a labor contract, and in principle, there is no room for a duty to pay a retirement allowance during the existence of a labor contract. Thus, even if an employer agreed to pay a certain amount of money under the name of the retirement allowance paid each month between the employer and the employee, and the employer paid it, it shall not be effective as a retirement allowance under the above provision (see Supreme Court Decision 2002Do2211, Jul. 12, 2002). Since there was such an agreement between the employer and the employee prior to the occurrence of the duty to pay a retirement allowance, it shall not be deemed that the employee agreed not to receive a retirement allowance, or expressed its intent not to pay a retirement allowance, and it does not violate the social rules.

The judgment of the court below to the same purport is just, and there is no error of law as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)