[Plaintiffs, Appellants] Plaintiff 1 and 1 other (Attorney: Law Firm Seongwon, Attorney in charge Hong Kyung-pyo)
[Defendant, Appellee] ○○○ Co., Ltd. (Attorney: Law Firm B&S, Attorney in charge Baek Su-gi)
[Judgment Below] Incheon District Court Judgment 2008Na14947, decided October 26, 2010
[Order]
The part of the judgment below concerning the Plaintiffs' losing portion as to the claim for retirement allowance is reversed, and this part of the case is remanded to the Panel Division of the Incheon District Court.
[Reasoning]
The grounds of appeal are examined as follows.
1. Where an employer and an employee agree to pay a certain amount in advance as retirement allowance together with the monthly salary or the daily wage paid on a monthly or daily basis (hereinafter referred to as an "agreement to pay retirement allowance in installments"), such agreement, unless it is recognized as an interim settlement of retirement allowance, constitutes an advance waiver by the employee of the right to claim retirement allowance that arises upon final retirement, and is therefore null and void as being in violation of mandatory statutory provisions. As a result, even if the employer pays money in the name of retirement allowance to the employee pursuant to such an agreement to pay retirement allowance in installments, such payment has no effect as payment of retirement allowance.
Meanwhile, wages under the Labor Standards Act (근로기준법) refer to all money paid by an employer to an employee as compensation for labor, which is paid continuously and regularly to the employee, and for which the employer bears an obligation to pay pursuant to a collective agreement, rules of employment, remuneration regulations, employment contract, labor practice, etc. However, where money in the name of retirement allowance has been paid separately from the monthly salary or daily wage during the continuation of the employment relationship pursuant to an agreement to pay retirement allowance in installments, but such agreement is null and void for the reasons stated above and thus has no effect as payment of retirement allowance, the money already paid in the name of retirement allowance pursuant to such agreement cannot be deemed to constitute "wages paid as compensation for labor" either. Accordingly, the employer, having paid money in the name of retirement allowance to the employee without legal cause, has thereby suffered damages equivalent to that amount, while the employee has gained a benefit equivalent to the same amount; therefore, it is reasonable from the standpoint of equity to hold that the employee must return the money received in the name of retirement allowance to the employer as unjust enrichment (see Supreme Court en banc Decision 2007Da90760, decided May 20, 2010).
However, considering the legislative purpose of establishing the retirement allowance system as a mandatory statutory provision, the foregoing legal principle applies only on the premise that a substantive agreement to pay retirement allowance in installments exists between the employer and the employee. Accordingly, where the agreement concluded between the employer and the employee is, in substance, merely a determination of wages, and the employer has merely adopted the form of an agreement to pay retirement allowance in installments in order to evade the payment of retirement allowance, the foregoing legal principle cannot be applied. That is, the foregoing legal principle applies only where: there exists an agreement between the employer and the employee to the effect that retirement allowance is included in the monthly salary or daily wage and that no separate retirement allowance will be paid upon retirement; the amount of money in the name of retirement allowance, as distinguished from wages, is specified; and, considering the amount of wages excluding such money in the name of retirement allowance, the terms of the employment contract including the agreement to pay retirement allowance in installments are not disadvantageous to the employee in light of the previous employment contract or the Labor Standards Act, etc. — in other words, only where the employer and the employee have agreed to substantively pay a certain amount of money additionally in the name of retirement allowance, distinguished from wages (see Supreme Court Decision 2008Da9150, decided May 27, 2010).
2. The court below determined as follows: (1) since each of the annual salary contracts concluded between the Plaintiffs and the Defendant prior to February 2004 merely stated that retirement allowance was included in the annual salary amount, without specifying the amount of money in the name of retirement allowance, it cannot be deemed that the amount of money in the name of retirement allowance, as distinguished from wages, was specified in the employment contracts concluded prior to February 2004; therefore, it cannot be deemed that the Plaintiffs and the Defendant agreed, prior to February 2004, to substantively pay a certain amount of money additionally in the name of retirement allowance, distinguished from wages. (2) However, from February 2004 onward, at the time each annual salary contract was executed, an agreement was made to the effect that retirement allowance was included in the annual salary amount and that no separate retirement allowance would be paid upon retirement, and it was also found that each annual salary contract executed from February 2004 onward specified the amount of money in the name of retirement allowance to be paid monthly. Accordingly, the court below found that there existed, in the employment contracts concluded from February 2004 onward between the Plaintiffs and the Defendant, an agreement to pay retirement allowance in installments to substantively pay a certain amount of money additionally in the name of retirement allowance, distinguished from wages, and determined that, although the Defendant paid money in the name of retirement allowance from February 2004 onward, such payment had no effect as payment of retirement allowance; that the Defendant, by paying money in the name of retirement allowance to the Plaintiffs without legal cause, thereby suffered damages equivalent to that amount, while the Plaintiffs gained a benefit equivalent to the same amount; and that, therefore, the Plaintiffs were obligated to return to the Defendant, as unjust enrichment, the money received in the name of retirement allowance from February 2004 onward.
3. However, in light of the following circumstances recognized from the record — namely: (1) that in calculating the monthly amount of money in the name of retirement allowance to be paid to the Plaintiffs, the Defendant, without considering the Plaintiffs' average wages, first determined the Plaintiffs' annual salary amount and monthly salary amount, and then, by working backward from that amount, uniformly determined the amount in the name of retirement allowance (the Defendant arbitrarily divided the annual salary amount into an item designated as base pay, corresponding to 12/13 of the amount, and an item designated as retirement allowance, corresponding to 1/13 of the amount, and paid them accordingly); (2) that the Defendant, in determining the wages serving as the basis for calculating annual/monthly leave allowances, etc. paid to employees, included the money in the name of retirement allowance therein; (3) that it is difficult to conclude that the Plaintiffs, who received wages in the form of a monthly salary, received payment with a clear distinction between the portion paid as retirement allowance and the portion not so paid; and (4) that if the amount in the name of retirement allowance is excluded from the Plaintiffs' annual salary amounts for 2004 and 2005, the result would be that the amount is actually reduced compared to the annual salary amount for 2003, rendering the employment contract disadvantageous, which is difficult to accept in light of the trend of increasing annual salary amounts since 2001; accordingly, it is reasonable to view the substantive annual salary from 2004 onward as an amount inclusive of the amount in the name of retirement allowance — there is substantial room to find that the agreement to pay retirement allowance in installments between the Plaintiffs and the Defendant from February 2004 onward was, in substance, merely a determination of wages, and that the Defendant merely adopted the form of an agreement to pay retirement allowance in installments in order to avoid the payment of retirement allowance, such that the amount is included in the amount that the Plaintiffs were legitimately entitled to receive as wages.
Nevertheless, the court below, relying solely on the circumstances stated in its reasoning, determined that the Defendant, pursuant to the agreement to pay retirement allowance in installments from February 2004 onward, additionally paid the Plaintiffs money in the name of retirement allowance substantively distinguished from wages, and thereby concluded that the Plaintiffs were obligated to return to the Defendant, as unjust enrichment, the money received in the name of retirement allowance. Such determination by the court below constitutes an error affecting the outcome of the judgment, resulting from a misunderstanding of the legal principles concerning agreements to pay retirement allowance in installments.
4. Therefore, the part of the judgment below concerning the Plaintiffs' losing portion as to the claim for retirement allowance is reversed, and this part of the case is remanded to the court below for further hearing and determination. This Judgment is rendered in accordance with the unanimous opinion of the Justices participating in the adjudication, as set forth in the Order.
Justice Kim Shin (Presiding Justice), Min Il-yeong, Lee In-bok (Justice in charge), Park Bo-yeong