퇴직금분할약정의 법리에 대한 비판적 검토

As the severance payment is imperative in our legal system, it is hardly appropriate to consider the severance payment by installment agreement, which is a contract for an employer to provide all or part of legal severance pay periodically along with the wage before the employee's retirement and for an employee not to ask for another severance pay after her retirement, to be valid. Before we start, it is much more reasonable to distinguish whether there's a severance payment by installment "agreement" between the employer and the employee firstly and, if we find the agreement is exist, to distinguish between the case where the "severance payment" is substantially a part of the wage and the case where the "severance payment" exists separately to decide whether the claim for restitution of unjust enrichment from the employer against the employee is admittable. In the latter case, assuming that we just follow present case law, there's no injustice when the severance pay already provided is the same as legal severance pay or less but unbearable injustice in terms of specific validity or labor protection when it exceeds legal severance pay because present cases impute the risk from severance payment by installment agreement which is mostly advantageous to employers to the employee, not the employer. To solve this problem, we should see that the employer's claim for restitution of unjust enrichment against the employee can only be sustained as much as legal severance pay, not all the severance pay already provided in the case where the "severance payment" exists separately from the wage and the severance pay already provided exceeds legal severance pay on the grounds of "good faith doctrine(estoppel doctrine)" or "principle of equity", which means some change of present case law. Further, as for the setoff defense by an employer, it is not allowed when the employer's claim for restitution of unjust enrichment can not be sustained. And even in the case where the employer's claim for restitution of unjust enrichment is admittable, in my opinion, we should not allow the setoff defense by the employer considering the principle of complete payment wages and there's no compelling reason to allow exceptions for it even allowing for the logic of precedents.