월급에 포함된 퇴직금 지급의 효력 - 서울고등법원 2007. 11. 30. 선고 2006나86698 판결 판례 평석

Until naw the Supreme Court has judged that it is not lawful to pay monthly salaries including the severance pay under cover of the annual salary system or the inclusive wage system, because the monthly severance payments ruin the severance pay system. But a judicial decision, Seoul High Court 2007. 11. 30, 2006 Na 86698 judged that the unlawful monthly severance payments are excessive profits, to cancel the employer’s obligation of the severance payment. This article is a case review to examine the judicial decision. I conclude that as follows; (1) The interim severance pay for the future period shall be unlawful, because the severance pay must calculate for the past period. (2) It is unlawful and an evasion of the law, making the employee abandon severance pay right, that the employer evades his responsibility of severance payment thought the form of interim severance, and so it violates the public good moral and social order. Therefore the payments under the name of interim severance in advance are excessive profits for unlawful cause, which may not repayment to the employer. The payments are as wages for work. So the employee may re-demand another severance payment. (3) The interim severance pay for the past period is lawful, but it shall be done by employee’s real free will. If the employee has compelled to adjust the interim severance pay, he may demand the difference between two payments, which are the interim severance payments in the past time and severance payment in the retirement time.