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(영문) 인천지방법원 2018.10.24 2018노2096

근로기준법위반

Text

The judgment below

The guilty portion shall be reversed.

Defendant shall be punished by a fine of two million won.

The above fine shall be imposed on the defendant.

Reasons

1. The court below rendered a judgment dismissing a public prosecution on the violation of the Labor Standards Act in relation to E among the facts charged in the instant case, and on the violation of the Labor Standards Act in relation to C and D, and only the prosecutor appealed on the guilty portion. As such, the dismissal part of the court below's judgment becomes final and conclusive separately from the attitude of the appeal period, and the scope of the court's judgment is limited to the remainder other than the dismissed part among the judgment below.

2. The summary of the grounds for appeal (unfair sentencing) by the court below is unreasonable as it is too unfasible that the sentence (2 million won in penalty) imposed on the defendant is too unfased.

3. We examine ex officio prior to the judgment on the grounds for appeal by the prosecutor ex officio.

Article 1 of the Criminal Act provides that a person who violates Article 36 of the former Labor Standards Act (amended by Act No. 15108, Nov. 28, 2017; hereinafter “former Labor Standards Act”) shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 20 million won, but Article 109(1) of the former Labor Standards Act (amended by Act No. 15108, Nov. 28, 2017; hereinafter “former Labor Standards Act”) provides that “Any person who violates Article 36 shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 20 million won.” However, Article 109(1) of the Labor Standards Act, which was amended by Act No. 15108, Nov. 28, 2017 (from six months after the date of promulgation) shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won.”

Therefore, since the legal penalty of the new law is more severe than that of the former law, the court below erred in misunderstanding the legal principles that determine the punishment of the defendant by applying the new law, so the judgment of the court below cannot be maintained any more.

4. Accordingly, the judgment of the court below is unfair since there is a ground for reversal ex officio.

참조조문