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A Review of Legal Aspects Related to Retirement Allowances Paid with Monthly Salaries

In this paper, a review is made of examples and legal issues related to the amount of retirement allowance paid with monthly salaries. Since 2000, there have been the cases in which labor contracts are entered into specifying that retirement allowances be paid each month or each year together with salaries in a modified form of interim account settlement. Such practices have since caused much controversies over the legal nature of the amounts paid with salaries in the name of retirement allowance. Concerning those practices, the Supreme Court of Korea has ruled as follows: first, the payment under the title of retirement allowance shall not be regarded as wage that is paid in compensation for labor, so the employee shall return what is received under such name to his or her employer as it is an excessive profits; and second, offset of claims for retirement allowance by claims for return of excessive profits is possible, but offset only within the scope of amounts that exceed more than half of the claims for retirement allowance. The viewpoint of the Supreme Court in this case seems, however, not to have fully reflected the original intent of the system of excessive profits and legal nature of retirement allowance. First, the amount paid in addition to or in partition of the monthly salary should be looked upon as ordinary wage because it is provided periodically and indiscriminately. If a contract is settled to include retirement allowance in the annual salary with a view to avoid payment of retirement allowance by dividing ordinary wage and retirement allowance, the amount paid under the pretext of retirement allowance shall be interpreted to belong to ordinary wage. Even if the intent to avoid payment of retirement allowance appears unclear, it must be clarified whether the payment is made in compensation for labor or regularly or indiscriminately. Besides, even when it is not the case of ordinary wage, it must also be made clear if it is the wage that an employer is forced to pay in return for labor or whether it is kind of amount, if not wage, that is paid by employer to employee in the form of expenses for congratulations and condolences. Second, a contract for interim account settlement between the plaintiffs pleading for judicial decision of excessive profits and the defending companies is an offense against the enforcing regulations of the old Labor Standards Act and is, thus, void in the absolute and objective sense. Moreover, such contract is settled in line with change in the management policy of the defending companies and revision of the employment regulations. Though the plaintiffs look like having freedom formally in their position to enter into contract with the employer, they are under no circumstances in the fair relationship with their employer but they, as an individual, are on a discriminatory position as an employee who is actually within an organization of the company. It is difficult to say that, under such relationship, plaintiff's claim for payment of retirement allowance is a breach of estoppel, insisting upon nullifying of interim account settlement of retirement allowance. The claim of the plaintiffs for retirement allowance is nothing but an exercise of their legitimate rights but is anything but an overuse of their rights. It is rather intolerable for the defending company to try to legitimate itself after it commits legal provisions itself. The claimed retirement allowance is not thought to be excessive profits in this context. Third, it is hard to accept the defending company's claim for excessive profits and, even when it is accepted, the claim for return of excessive profits shall be rejected as it is ill-intentioned paiement de l'indu. The contract for interim account settlement concluded in violation of the Labor Standards Act is presumed to have an intent to avoid the obligation to pay retirement allowance. And in the case such intent can't be clearly traced up, the assertion