2018.4.25
Jenny Chen
The Supreme Court rendered the 106-Tai-Shang-2733 Civil Decision of April 25, 2018 (hereinafter, the “Decision”), holding that since the right of a worker to claim a pension cannot be exercised before a labor contract is terminated, a voluntary reduction of the pension amount or waiver of the claim, which is not a disposal of existing rights, is certainly invalid for violation of mandatory provisions.
According to the facts underlying this Decision, the Plaintiff filed a complaint alleging that he had been hired by the Defendant, applied for retirement in accordance with the Labor Standards Law on October 22, 2012 and requested that the Defendant pay his pension pursuant to law. The Defendant contended that the Plaintiff orally represented to his legal representative that he would only claim old-age pension benefits under labor insurance (hereinafter, the “Old-age Benefits”) during September or October 2012 and gave up his right to claim a pension from the Defendant. The original decision was rendered against the Plaintiff on the ground that the Plaintiff had given up the right to claim a pension. Dissatisfied, the Plaintiff filed this appeal.
According to the Decision, claiming a labor pension, which shall be paid after a worker retires, is an inherent right of a worker, as evidenced by the benefit standard for labor pension under Article 55, Paragraph 1 of the Labor Standards Law, which requires that the benefits shall be paid based on the entire service period of a worker as the calculation standard and by the requirement under Article 56 that an employer shall contribute to a labor pension reserve in a dedicated savings account on a monthly basis. With respect to the years in services and benefit standard for workers, these are mandatory requirements imposed pursuant to the policy of protecting the old-age livelihood of workers. If an employer and an employee agree in advance that the years in service and pension will not be calculated before the commencement of employment or the worker’s retirement, such agreement is invalid for violation of the mandatory requirements. Although a worker obtains the right to apply for retirement and claim a pension when the statutory retirement criteria are met, still a worker’s right to claim a pension cannot be exercised before the labor contract is terminated. Since the voluntary reduction of the pension amount or waiver of the claim is not a disposal of an existing right, the indication of the intent to reduce or waive the pension is certain invalid for violation of the above mandatory requirements.
It was further pointed out in this Decision that the Appellant in this matter satisfied the criteria for voluntary retirement under Article 53, Subparagraph 1 of the Labor Standards Law, when the Appellant had “worked for at least 15 years and reached the age of 55” on October 17, 2011. The Appellant also handled the formalities for the termination of his employment, surrendered his labor insurance and applied for the Old-age Benefits on October 22, 2012. Therefore, whether the Appellant indicated to the Appelleehis intent to waive his claim to the pension at issue again upon termination of the labor contract between the parties or thereafter is quite relevant to the validity of the Appellant ‘s indication of intent to waive the claim to the pension at issue. Without looking into such matter, the original trial court elected to rule against the Appellant on the ground that since the Appellant had indicated his intent to waive the claim to a pension during September or October 2012, the pension claim lapsed. Since the original decision was unlawful, it was reversed and remanded.