[Defendant]
[Appellant] Defendant
[Defense Counsel] Attorney Choi Sun-gyu and one other
[Judgment Below] Jeonju District Court Judgment 2009No319, decided July 24, 2009
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Jeonju District Court.
[Reasoning]
The grounds of appeal are examined.
1. As to Ground of Appeal No. 1
Article 8, Paragraph 1 of the Employee Retirement Benefit Security Act (근로자퇴직급여 보장법; hereinafter the "Act") provides that "An employer who intends to establish a retirement benefit system shall establish a system whereby an average wage equivalent to 30 days or more is paid as a retirement benefit to a retiring employee for each year of continuous employment," and the first sentence of Paragraph 2 provides that "Notwithstanding Paragraph 1, where an employee so requests, the employer may settle and pay in advance, before the employee retires, the retirement benefit for the period of continuous service of the employee up to that point." The "retirement benefit" under the above statutory provision is, in essence, in the nature of deferred wages, in that the employer accumulates, without paying, a portion of the wages owed for the employee's provision of labor, and uses this as the basic source of funds to pay a lump sum when the employee, having worked for one year or more, retires (see, e.g., Supreme Court Decision 2004Da8333, decided March 30, 2007). Therefore, the right to claim such retirement benefits cannot arise while the employment contract remains in existence, except where an interim settlement of retirement benefits is validly established.
Accordingly, if the employer and the employee agree to pay in advance, together with the monthly salary or daily wage, a certain amount of money designated as a retirement benefit (hereinafter an "agreement for the installment payment of retirement benefits"), such agreement, unless it is recognized as an interim settlement of retirement benefits under the first sentence of Article 8, Paragraph 2 of the Act, constitutes an advance waiver by the employee of the right to claim retirement benefits that arises upon final retirement, and is therefore void as being in violation of Article 8 of the Act, which is a mandatory provision. As a result, even if the employer paid money designated as retirement benefits to the employee pursuant to such an agreement for the installment payment of retirement benefits, such payment has no effect as payment of retirement benefits (see Supreme Court en banc Decision 2007Da90760, decided May 20, 2010, etc.).
According to the reasoning of the judgment below, the court below determined that the Defendant's conclusion of agreements for the installment payment of retirement benefits with Non-indicted 1, 2, 3, 4, and 5 (hereinafter the "employees at issue") and the subsequent payment of money designated as retirement benefits pursuant thereto had no effect as an interim settlement of retirement benefits or as payment of retirement benefits, and accordingly rejected the Defendant's argument that he had paid all retirement benefits owed to the employees at issue.
In light of the legal principles set forth above and the record, the above determination by the court below is justified. There is no error in the judgment below, such as a misapprehension of the legal principles concerning the effect of agreements for the installment payment of retirement benefits, as alleged in the grounds of appeal.
2. As to Ground of Appeal No. 2
A. If there exists a basis for disputing the existence and scope of the obligation to pay retirement benefits, it should be considered that there was a reasonable ground for the employer's failure to pay such retirement benefits, and it is therefore difficult to recognize that the employer had criminal intent for the offense under Article 31 and Article 9 of the Act. Whether there exists a basis for disputing the existence and scope of the obligation to pay retirement benefits, etc. should be determined in light of various factors, including the employer's reasons for refusing payment and the basis for the payment obligation, the organization, size, and business purpose of the company operated by the employer, and other circumstances existing at the time of the dispute over the existence and scope of the obligation to pay retirement benefits, etc. The mere fact that the employer's civil liability for payment is subsequently recognized should not lead directly to the conclusion that the employer had criminal intent for the offense under Article 31 and Article 9 of the Act (see Supreme Court Decision 2007Do1539, decided June 28, 2007, etc.).
B. According to the reasoning of the judgment below and the record, the following facts may be found.
(1) The Defendant, as the representative of Non-indicted 6 Limited Company, operated a construction business employing 13 regular employees.
(2) From around April 2005, Non-indicted 6 Limited Company employed the employees at issue for a construction period of a little over one year for the construction of the ○○ Golf Course located at (lot number omitted), Hwasim-ri, Soyang-myeon, Wanju-gun, Jeollabuk-do. Non-indicted 6 Limited Company entered into what is called an annual salary contract with Non-indicted 1, setting the contract period at one year, with the possibility of extension until the completion date of the golf course construction, setting the retirement benefit at 4,620,000 won and the total annual salary at 60,024,960 won, and, at Non-indicted 1's request, including an agreement for the installment payment of retirement benefits whereby the retirement benefit would not be paid in a lump sum upon retirement but would instead be divided into 12 installments and paid together with the monthly wage. Non-indicted 6 Limited Company similarly entered into annual salary or monthly salary contracts of similar content, with a contract period of one year or one month (in the case of Non-indicted 3), with the employees at issue, and thereafter paid to the employees at issue amounts designated separately as wages and as retirement benefits.
(3) The employees at issue actually worked for a little over one year and retired between May 31, 2006 and September 12, 2006. During the period of employment and at the time of retirement, as well as for at least approximately seven months thereafter, none of them demanded payment of retirement benefits from the Defendant or Non-indicted 6 Limited Company, nor did they raise any objection to the above agreement for the installment payment of retirement benefits.
(4) The Defendant paid money to the employees at issue after each of their respective dates of retirement, designated as farewell money, living expenses, wages, etc. Specifically, the Defendant paid Non-indicted 3 one million won as farewell money around June 2006; paid Non-indicted 2, who retired on June 4, 2006, the full amount of one month's wages for June 2006, namely 2,798,150 won, on July 10, 2006, and additionally paid five million won as farewell money around that time; paid Non-indicted 5, who retired on August 31, 2006, an amount equivalent to one month's wages for September 2006, namely 1,386,560 won, on October 10, 2006; paid Non-indicted 4, who retired on September 12, 2006, the full amount of one month's wages for September 2006, namely 2,789,150 won, on October 10, 2006, and additionally paid 500,000 won as farewell money around October 2006; and paid Non-indicted 1, who retired on August 31, 2006, wages for September 2006 amounting to 4,642,080 won on October 10, 2006, as well as three million won as living expenses around October 2006, one million won on December 11, 2006, and one million won on January 16, 2007; and on March 1, 2007, the Defendant discharged, as farewell money, a debt equivalent to five million won out of the ten-million-won loan claim that the Defendant held against Non-indicted 1 arising from a loan made on August 25, 2005. In addition, on August 20, 2006, when the above golf course construction was substantially completed, the Defendant paid a travel agency 750,000 won per person to send Non-indicted 1, 4, 5, and 2 on a trip to Vietnam.
(5) Meanwhile, the retirement benefit claim lawsuit filed by the employees at issue against Non-indicted 6 Limited Company was concluded when a compulsory mediation decision and a recommendation for reconciliation, under which Non-indicted 6 Limited Company was to pay 100,000 won each to Non-indicted 1 and 2, 850,000 won to Non-indicted 3, and 600,000 won each to Non-indicted 5 and 4, became final.
C. In light of the legal principles set forth above, considering the various circumstances appearing in the above factual relationship — namely, that while it is true that the Defendant, as the representative of Non-indicted 6 Limited Company, failed to pay retirement benefits to the employees at issue despite the obligation to do so, the Defendant, in representing Non-indicted 6 Limited Company in concluding employment contracts with the employees at issue, entered into agreements for the installment payment of retirement benefits at the request of Non-indicted 1 and others, whereby a certain amount would actually be paid in addition to and separately from wages, designated as retirement benefits, and thereafter specified and paid to the employees at issue, in addition to their monthly wages, amounts designated as retirement benefits; that the employees at issue never raised any issue as to the validity of the agreements for the installment payment of retirement benefits, nor did they demand payment of retirement benefits from Non-indicted 6 Limited Company or the Defendant, nor did they otherwise raise any objection concerning retirement benefits, during their employment, at the time of each of their respective retirements, or for several months after their retirement; that the Defendant, at his own expense, sent all of the employees at issue, except for Non-indicted 3, on an overseas trip, and, in addition, paid Non-indicted 1 approximately 14 million won designated as farewell money, living expenses, and wages for periods not actually worked, among other things, thereby paying the employees at issue, even after their retirement, amounts far exceeding the total sum of the retirement benefits at issue in this prosecution; that the fact that the Defendant designated these payments as farewell money or wages, etc. appears to stem from the Defendant's belief that the payment of retirement benefits to the employees at issue had already been completed and that no further obligation to pay retirement benefits remained; and, taking into account the various circumstances surrounding the employment relationship of the employees at issue, including the scale of Non-indicted 6 Limited Company operated by the Defendant and the circumstances under which the employees at issue were hired to carry out construction work requiring a little over one year — it may be found that there existed a basis for the Defendant to dispute the existence of the obligation to pay retirement benefits to each of the employees at issue. It should therefore be considered that there was a reasonable ground for the Defendant's failure to pay retirement benefits to the employees at issue, and it is accordingly difficult to conclude that the Defendant had criminal intent for the offense under Article 31 and Article 9 of the Act.
If that is the case, the court below's determination, as stated in its judgment, that the Defendant had criminal intent as to each of the offenses charged in this case, and its finding of guilt on the facts charged in this case on that basis, contain an error of law affecting the outcome of the judgment, in that the court below either misapprehended the legal principles concerning criminal intent for the offense under Article 31 and Article 9 of the Act, or failed to exhaust the necessary examination.
The argument in this part of the grounds of appeal, pointing out this error, has merit.
3. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further examination and determination, in accordance with the unanimous opinion of the Justices participating, as set forth in the Order.
Justice Yang Chang-su (Presiding Justice), Justice Kim Ji-hyung (Justice in charge), Justice Jeon Su-an, Justice Lee Sang-hoon