연봉제와 퇴직금 ― 월급에 포함된 ‘퇴직금 명목 금원’의 부당이득 성립 여부 ―

Recent agreements (herein below “severance payment by installment agreement”) by employer and employees to include the fixed amount of money in monthly salary payments to pre-settle severance payments are becoming issues. These agreements, however, are invalid by wavering in advance of the employee’s right to claim severance payment which should occur at the time of retirement, and thus does not comply with the Labor Standard Act which is a compulsory law. For such, the consistent opinion of legal precedents sees that such pre-paid severance payments is invalid even if it was paid with severance payment justification. The majority of court judgment issues, after the implementations of the annual salary systems, are with the employer’s right to claim for the returning of money paid to employees with severance payment justification that has been included as monthly salary payment which lacks the interim payout requirement thus is invalid severance payments. The issue is whether the employer has the right to claim for the return with an undue benefit paid without the legal obligation reason. Precisely, the concern is whether the employer could claim return of such money paid with the severance payment justification based on the undue benefit theory of the general civil law, or on contrarily, should pay the severance payment to employee by counting what has already been paid as a kind of general salary. The court judgment states that the money paid to pre-settle the later occurring severance payment is an undue benefit. Even supposing so, it is not right to say, “Therefore, the proper is to return” since not all the refund claims due to the undue benefit reasons get permitted. If the money paid by a defendant company with the severance payment justification is an undue benefit, then the review to evaluate to admit the right to claim for returns should be proceeded. Discharge with obligation is when the person has discharged an obligation with the knowledge that no such obligation exists. With such discharge with obligation cases, the judgment, whether to permit the right to claim for the refund, should be made based on the person’s bona/mala fide. The severance payment by installment agreement is a discharge with obligation in mala fide, and thus the claim of return should not be permitted. (Civil Law_Article 742)