2. B

3. C.

4. D.

Attorney E

Defendant D shall be punished by a fine of KRW 1,000,000. When Defendant D fails to pay the above fine, Defendant D shall be confined in the workhouse for a period calculated by converting KRW 50,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine against Defendant D. The sentence against Defendant A, B, and C shall be suspended, respectively.

A. Defendant A - misunderstanding of facts

① The Defendant, as the representative director of G (hereinafter referred to as “G”), paid KRW 3.2 million monthly wages to H (hereinafter referred to as the “full-time officer of the Korean Automobile Workers’ Union (hereinafter referred to as the “full-time officer of the Labor Union”) in North Korea, which was the president of G branch of G branch of the Korean Automobile Workers’ Union (hereinafter referred to as the “full-time officer of the Labor Union”) to the full-time officer of the Labor Union. In light of the fact that G and Jeonbuk Motor Workers’ Union worked for the full-time officer of the company in the process of handling grievances, transportation, and industrial safety guidance, etc., while taking into account the fact that the full-time officer of the labor union worked for the union members, he/she would pay the above gold to the full-time officer on the basis of the ordinary wage payment standards at the workplace, and the Defendant did not have any intention to provide labor or labor relations assistance, and thus, the Defendant did not report any unfair assistance to the Labor Relations Commission, including the Ministry of Employment and Labor, on the ground that the aforementioned payment was made through the collective agreement.

B. Prosecutor - Unreasonable sentencing

The sentence against the Defendants of the lower court (the suspended sentence of a fine of one million won) is too unffortable and unfair.

2. Ex officio determination

Before the judgment on the grounds for appeal by the Defendant A and the Prosecutor, the Prosecutor applied for the amendment of the indictment to the effect that “the employee controlled or involved in the organization or operation of a trade union by paying wages” among the facts charged against the Defendants was “paid by paying wages,” and that the subject of the judgment was changed by this court’s permission. As such, the judgment of the court below was no longer maintained.

However, despite the above reasons for ex officio destruction, Defendant A's shower argument is still subject to the judgment of this court, and this is examined.

3. Determination on Defendant A’s grounds for appeal

A. Relevant legal principles

Article 24(2) of the Trade Union Act prohibits a trade union from paying wages to its full-time officer by stipulating that a person engaged in affairs of a trade union shall not receive any benefits from the employer during the period of his/her predecessor (Article 24(2) of the Trade Union Act): Provided, That where a collective agreement is prescribed or the employer agrees, an employee may engage in affairs of maintaining and managing a trade union without loss of wages to the extent that does not exceed the limit of exemption from working hours determined pursuant to Article 24-2 of the Trade Union and Labor Relations Adjustment Act (Article 24(4) of the Trade Union and Labor Relations Adjustment Act), and the act of providing wages to the full-time officer of a trade union shall be subject to criminal punishment under Article 81(4) of the Trade Union and Labor Relations Adjustment Act (Article 81) and

Article 24 (2) of the Trade Union and Labor Relations Adjustment Act is a compulsory provision, which prohibits an employer from providing additional wages to a full-time officer other than ordinary wages within the limit of the exemption from working hours set by a collective agreement, etc., and even if a collective agreement is concluded against this, it shall be deemed null and void. The wages that an employer can pay to a full-time officer who is exempted from working hours pursuant to Article 24 (4) of the Trade Union and Labor Relations Adjustment Act are for working hours exempted from the duty to provide labor to the full-time officer. In principle, working hours at a full-time officer refer to working hours where a full-time officer is not a full-time officer, but a full-time officer who is not a full-time officer, as defined in Article 2 (1) 7 of the Labor Standards Act. The wages that an employer is entitled to receive for the full-time officer who is exempted from working hours under the main sentence of Article 24 (1) 4 of the Trade Union and Labor Relations Adjustment Act should be deemed to be paid to the full-time officer.

B. Determination

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court: (a) collective agreement and wage agreement concluded on July 1, 201 between Defendant G and the former North Korean Automobile Labor Union established the contractual hours of workers at 40 hours a week; (b) annual contractual hours are 2,080 hours (=40 hours x 52 weeks); (c) in the case of a predecessor, the amount of wages exempted and wages is fixed at 3.2 million won per month; (d) the above company’s wages paid to the full-time officer from January 2012 to December 12, 2012, including bonus, continuous service allowances, etc. were confirmed to have been exempted from the above wages; (e) the amount of wages paid to the full-time officer during the same period, other than the above hours of labor union’s wages paid to A; and (e) the company’s statements, other than the above hours of labor union’s wages paid by the full-time officer, are no more than the amount of wages paid to the full-time officer.

It is an act of supporting full-time officers of a trade union under Article 81 (4) of the Trade Union and Labor Relations Adjustment Act, which is paid in excess of the amount of wages that can be paid.

In addition, in addition to the above circumstances, G appears to have presented the opinion that it would not constitute a violation of the Trade Union and Labor Relations Adjustment Act with respect to the demand of a full-time employee of the Trade Union to raise wages to the full-time employee in the process of mediating the collective agreement in 2011, and that it would be difficult to accept until the end (Article 196 of the Investigation Record). In light of the regulatory form where "the act of controlling or participating in the organization or operation of a trade union" and "the act of supporting the full-time officer of a trade union" under Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act and "the act of supporting the full-time officer of a trade union", in the case of the payment of wages, it is deemed that the act of providing unfair labor is constituted as an act of supporting the employer even without the intention of control or intervention of the employer, and even if the former Regional Labor Relations Commission and investigator who participated in the process of mediating the labor dispute, the court below did not mention that it did not violate the Trade Union and Labor Relations Act.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act on the ground that there is an ex officio reversal as above, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime acknowledged by this court and the summary of the evidence are as follows: except for the changes to the facts constituting the crime of the court below, "the worker controlled or involved in the organization or operation of a trade union by paying wages" in the second, 17, 18, 3, 6, 7, 15, 16, 4, 3 and 4 "the worker performed an act of supporting the full-time officer by paying wages", and they are cited as the corresponding columns of the court below and they are as they are in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Defendants: Articles 90 and 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act; Selection of fine

1. The type to be suspended;

Defendant A, B, and C: Fines 1,000,000

1. Detention in a workhouse;

Defendants: Articles 70 and 69(2) of the Criminal Act (50,000 won per day)

1. Order of provisional payment;

Defendant D: Article 334(1) of the Criminal Procedure Act

1. Suspension of sentence;

Defendant A, B, and C: Reasons for sentencing under Article 59(1) of the Criminal Act

1. The Defendants A, B, and C pursuant to the collective agreement concluded before the enforcement of the Trade Union and Labor Relations Adjustment Act in 2010

In a situation where there is a collective agreement clause that "after setting the full-time officer's wages as KRW 3.2 million according to the standard of 30 days in full, it is difficult to take into account the circumstances that the monthly payment of KRW 3.2 million, the same as the year 2010, and there is a high possibility of criticism, and the sentence is suspended as ordered by taking into account the following circumstances: the above Defendants' age, character and behavior, environment, family relationship, motive, means and consequence of the crime, and circumstances after the crime, etc.

2. Defendant D

Although Defendant D is also aware that there is a reason to consider the circumstances leading to the crime, and that there is a great possibility of criticism, Defendant D has a record of being sentenced to suspension of indictment and a disposition of suspended sentence for the same kind of crime. On December 29, 2011, Defendant D was sentenced to two years of suspended sentence for a violation of the Commercial Act at the former District Court of the Republic of Korea on January 6, 2012 and the above judgment became final and conclusive on January 6, 2012. However, even if a suspended sentence is rendered and the period of suspended sentence becomes null and void without invalidation or cancellation of the sentence, Defendant D falls under a person who has been sentenced to suspended sentence or heavier than a person subject to suspended sentence under Article 59(1) of the Criminal Act, and is determined as the sentence as ordered by taking into account various circumstances, such as the Defendant’s age, character and behavior, environment, family relationship, motive, means and consequence of the crime, and the circumstances after the crime.

Judges Cho Il-hwan

Judges South South-North Sea