[1] The validity of an agreement under which expenses of education or wages during the period of education shall be returned in the event of failure to perform the period of occupational employment after entrusted education and training

[2] The validity of the agreement to return money and other valuables received from the dispatched overseas company in the event of failure to perform the period of compulsory employment where the dispatch of education and training was made for the purpose of acquiring technology through the actual employment in another overseas company (negative)

[3] In the case of paragraph (2) above, whether it constitutes a provision of labor to an enterprise dispatched by a dispatched overseas company (affirmative), and the validity of an agreement to return money and valuables received as a salary from an enterprise dispatched by a company who fails to perform the period of compulsory employment (negative)

[1] The employer's contract to pay a penalty or damages for non-performance of the labor contract is null and void in violation of Article 24 of the Labor Standards Act, which is a mandatory provision. If an employee who paid a certain amount of wages and does not work for a certain period of compulsory employment from the date of completion of education to pay expenses to the employee, then the employee shall pay the whole or part of the wages or the pertinent education expenses paid by the enterprise, but if the employee works during the period of compulsory employment, he/she shall be exempted from the payment of all or part of the expenses, the part of the expenses paid by the enterprise shall not be a contract which provides for penalty or damages prohibited under Article 24 of the Labor Standards Act. However, the part of the contract to return the wages is an agreement which the employee would return the wages paid to the employee as compensation for non-performance of the labor obligation, and

[2] Where dispatch of education and training is made for the purpose of acquiring skills through actual work in another company, the employee provided the dispatched company with labor to the company dispatched overseas for the purpose of acquiring skills, while on the part of the dispatched company while on the part of the dispatched company, and the salary and house taxes received from the dispatched company constitute the goods paid by the company dispatched for practical training through local work, and cannot be said to be money and goods that have the right to request the return of the worker by the company dispatched the expenses to be borne by the employee first, and thus, the agreement that the dispatched company should return the salary and house taxes received from the overseas company dispatched to the dispatched company when the employee does not work for the compulsory service period is null and void as a contract expected for penalty or damages prohibited under Article 24 of the Labor Standards Act.

[3] In the case of paragraph (2) above, the provision of labor to an overseas company dispatched by an employee to an overseas company is based on the right to command labor of the dispatched company, and it can be said that the provision of labor to the dispatched company is the provision of labor to the dispatched company. Thus, the basic salary and allowances paid by the dispatched company during the compulsory service period shall be wages. Therefore, the agreement that the dispatched company shall return the basic salary and allowances paid by the dispatched company if the employee does not work for the compulsory service period, is an agreement that the employee must return the wages paid by the dispatched company as compensation for the non-performance of the obligation to pay for the work, and therefore the agreement that the employee

[1] Articles 18 and 24 of the Labor Standards Act / [2] Article 24 of the Labor Standards Act / [3] Articles 18 and 24 of the Labor Standards Act

[1] Supreme Court Decision 77Da2479 decided Feb. 28, 1978 (Gong1978, 1079), Supreme Court Decision 80Da590 decided Jul. 8, 1980 (Gong1980, 1299), Supreme Court Decision 82Da90 decided Jun. 22, 1982 (Gong1982, 688), Supreme Court Decision 91Da26232 decided Feb. 25, 192 (Gong192, 1928)

This stone (Attorney Kim Jong-won, Counsel for the plaintiff-appellant)

The Korea Communications and Development Institute (Attorney Park Jae-sik, Counsel for defendant-appellee)

Seoul District Court Decision 94Na41101, 4118 delivered on April 28, 1995

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

The employer’s conclusion of a contract for liquidated damages or damages for nonperformance of a labor contract is null and void in violation of Article 24 of the Labor Standards Act, which is a mandatory provision (see Supreme Court Decision 77Da2479, Feb. 28, 1978). In a case where an employee who paid expenses to an employee and paid a certain amount of wages to the employee and does not work for a certain period of compulsory employment from the date of completion of the education, the employer shall have the employee repay all or part of the wages paid by the employee or the pertinent education expenses, but if the employee works during the period of compulsory employment, he/she shall be exempted from the payment of all or part of the education expenses, and it is not a contract for liquidated damages or damages prohibited under Article 24 of the Labor Standards Act (see Supreme Court Decision 91Da26232, Feb. 25, 192). However, the agreed part on the refund of wages is an agreement to return the wages paid by the employee as the object of his/her default of obligation, and thus is in violation of Article 24 of the Labor Standards Act.

According to the records, the Ministry of Information and Communications, which is an information and communications company located in the United States of America, introduced an exchange facility from T&T International (AT; hereinafter referred to as the "U.S. company"), 5 U.S. employees employed by the Ministry of Information and Communications and the U.S. company in Korea including the Defendant (Counterclaim Plaintiff; hereinafter referred to as the "Defendant") to establish an independent information culture in Korea through expansion and understanding of technology cooperation with 7 U.S. companies, and agreed to provide practical training through local work for the number of trainees selected by the U.S. company and pay them on an equal basis to the U.S. company's employees, and the Plaintiff (Counterclaim Defendant; hereinafter referred to as the plaintiff) who is the researcher of the defendant's 5 U.S. who was selected by the 19 U.S. military service company and the head of the 5 U.S. military service company to receive training from the 196 U.S. military service upon their request and the 196 U.S. military service provider's instruction. employees.

If the facts are the same, the plaintiff was dispatched to the U.S. company for the purpose of technical learning and provided work for the U.S. company during the special remuneration training period. The salary and house which the plaintiff received from the U.S. company are money and valuables paid by the U.S. company for practical training through local work, and it cannot be deemed money and valuables for the right to claim the return against the plaintiff by having the defendant bear the expenses to be borne by the plaintiff first. Thus, if the plaintiff did not work for the compulsory service period after the completion of the above special remuneration training, the agreement that the defendant should return the salary and house house amount paid by the U.S. company to the defendant to the defendant in the event that the plaintiff did not work for the compulsory service period in the U.S. research institute after the completion of the above special remuneration training shall be deemed null and void as a contract for the liquidated penalty or damages as prohibited under Article 2

On the other hand, the Plaintiff’s provision of labor as above to the U.S. company during the special remuneration training period is based on the Defendant’s right to command labor, which can be said to be the provision of labor to the Defendant, and thus, the basic pay and allowances that the Defendant paid to the Plaintiff during the above period are wages. Therefore, the part of the above basic pay and allowances agreed to return wages paid to the Plaintiff as compensation for nonperformance of duty, which is a contract that actually intends to compensate or compensate for damages. Therefore, the court below’s decision to the same purport is just and there is no error of law by misapprehending the legal principles under Article 24 of the Labor Standards Act, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)