207dan13288 Wages

1. A;

2. B

3. C

4. D;

E

February 19, 2008

March 18, 2008

1. The defendant shall pay to the plaintiff A 13,395,240 won, 10,776,200 won, 3,349,680 won to the plaintiff C, 7,354,010 won, and 20% interest per annum from August 8, 2006 to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Determination on the cause of the claim

(a) Facts of recognition;

The following facts may be acknowledged as either in dispute between the parties or in full view of the respective entries in Gap evidence 1 and 2 and the purport of all pleadings:

(1) From March 3, 199; from July 2, 1999; from Plaintiff B, Plaintiff C, from February 2, 2004; and Plaintiff D, from September 21, 2002, from September 21, 2002, as a beauty artist of “G beauty room” located in Busan Jung-gu operated by each Defendant, and retired on July 24, 2006.

(2) The retirement allowances that the plaintiffs did not receive from the defendant are as shown in the attached Form.

(b) Markets:

According to the above facts, barring any special circumstance, the defendant is obligated to pay to the plaintiffs each retirement pay details stated in the attached retirement allowance and damages for delay calculated at the rate of 20% per annum under Article 36-2 (1) of the former Labor Standards Act (amended by Act No. 7465, Mar. 31, 2005) and Article 13 of the Enforcement Decree of the former Labor Standards Act (amended by Presidential Decree No. 18912, Jun. 30, 2005) from August 8, 2006 to the date on which 14 days have passed after the retirement of the plaintiffs.

2. Judgment on the defendant's assertion

(a) Claim for interim settlement of retirement allowances;

(1) The defendant's assertion

The defendant set aside a certain amount of retirement allowance every month from the time of entry of plaintiff A and B, and at the request of the above plaintiffs, the defendant paid the plaintiff A a retirement allowance of 1,200,000 won on August 16, 2001, 90,000 won on March 6, 2002, 829,138 won on May 6, 2003, and 60,000 won on March 19, 2001, and 290,645 won on June 7, 2001 to the plaintiff B as an interim interim adjustment of retirement allowance. Thus, the continuous employment period of plaintiff A and B should be calculated from the date following the date of the interim adjustment of retirement allowance until the date of retirement, and even after the retirement period, since the defendant paid the retirement allowance at the request of the workers, including the plaintiffs, to the same method as the retirement allowance already paid.

(2) the board;

A) Specific claim for retirement allowance is not effective as retirement allowance payment under Article 34 of the former Labor Standards Act and Article 8(1) of the former Act on the Guarantee of Workers' Retirement Benefits (Act No. 7636, Jul. 29, 2005). Further, the agreement to be paid with retirement allowance included in monthly pay is in violation of Article 34 of the former Act, which provides for the waiver of the right to claim retirement allowance arising from the final retirement, and is null and void as it is in violation of Article 30 of the former Act, which is mandatory law. However, the employer may, upon the employee’s request, pay retirement allowance to the said employee in advance for the period of his continuous employment. This is an intermediate payment under Article 34 of the former Labor Standards Act and Article 8(2) of the former Guarantee of Workers’ Retirement Benefits Act, and it is not an interim payment under the premise that the Defendant’s interim payment of retirement allowance is valid for the period of 20 days prior to his retirement, but it is not an interim payment under the premise of 160 days prior to his retirement allowance.

(C) In addition, according to subparagraph 1-4 and 5 of subparagraph 1-5 of the plaintiffs' wage statement, the amount equivalent to 10% of the total amount paid in addition to the basic pay every month is classified as retirement allowance item, and the plaintiffs C have signed a labor contract stating the provision on the payment of benefits including retirement allowances around May 1, 2005 and around May 1, 2005. Furthermore, with regard to the fact that the above payment method was made individually and explicitly by the plaintiffs' individual and explicit needs, it is not sufficient to recognize it, and there is no other evidence to acknowledge it. Rather, each of the above statements in subparagraphs 1-3 and 5 of subparagraph 1-3 and there is no other evidence to support it. In other words, the plaintiffs have received 10% of the standard sales amount (20% of the standard sales amount, if it exceeds the standard sales amount) determined in accordance with the basic pay years since their entry, and it is not sufficient to recognize it with the above separate payment method in the wage statement or the actual payment method.

In light of the fact that there was no Dong, it is reasonable to view that the employer paid part of the wages already paid by the Defendant as the nominal retirement allowance.

Therefore, since the money paid by the defendant as classified as retirement allowance item per month cannot be recognized as effective as retirement allowance payment, the above argument by the defendant cannot be accepted.

(b) argument concerning the calculation of average wages;

The Defendant asserts that the amount equivalent to 10% of the average wages, which are the basis for the calculation of the retirement allowances claimed by the Plaintiffs, should be calculated by considering the deducted amount as average wages. However, as seen earlier, the Defendant’s payment of retirement allowances does not take effect as retirement allowances, and there is no change in the calculation method or level of wages before and after the Defendant paid the monthly amount including the money in the items of retirement allowances. In light of the above, the amount paid by the Defendant as retirement allowances should be deemed as part of ordinary wages, and the above argument by the Defendant is groundless

(c) Claim for deduction or offsetting of the retirement allowance already paid;

If the amount paid to Plaintiff A and B as an interim settlement of retirement pay or the amount paid to the Plaintiffs as retirement pay is not recognized as effective as retirement pay, it should be returned to the Defendant as unjust enrichment. Thus, the Defendant asserts that the above amount should be deducted from the amount of retirement payment of the Plaintiffs, or the above unjust enrichment return claim should be offset against the amount equal to that of the Plaintiffs’ retirement allowance claim.

As seen earlier, there is a lack of evidence to acknowledge that Plaintiff A and B received each interim settlement amount of retirement pay (the interim settlement amount of retirement pay paid by Plaintiff A on March 6, 2002, May 6, 2003, and the settlement amount by Plaintiff B on June 7, 2001) alleged by the Defendant (Provided, That as long as Plaintiff A claimed only retirement pay amounting to the number of consecutive years after August 16, 2001, the interim settlement amount of retirement pay of KRW 1,200,000 as recognized by the Plaintiff on August 16, 2001 shall not be deducted from the retirement pay that the Defendant has to pay to the Plaintiffs as part of ordinary wages, since the Defendant’s deduction or offset of unjust enrichment is without merit.

3. Conclusion

Thus, the plaintiffs' claims of this case shall be accepted on the grounds of all the reasons.

Judges Hong Young-young