[근로기준법위반][미간행]
[1] The meaning of "business or workplace which ordinarily employs not less than five workers" under Article 10 (1) of the former Labor Standards Act, which provides for the scope of application of the Labor Standards Act, and the criteria for its determination
[2] The case holding that a restaurant where three main employees and four employees are ordinarily employed at least three-4 and four employees were temporarily employed immediately before the cessation of business constitutes "business or place of business that employs five or more employees at a regular time," which is subject to the Labor Standards Act
[1] Article 10 (1) (see current Article 11 (1)) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) / [2] Article 10 (1) (see current Article 11 (1)) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007)
[1] Supreme Court Decision 87Do153 delivered on April 14, 1987 (Gong1987, 842), Supreme Court Decision 87Meu831 delivered on July 21, 1987 (Gong1987, 1390), Supreme Court Decision 97Da28971 delivered on November 28, 197 (Gong1998Sang, 70), Supreme Court Decision 99Do1243 delivered on March 14, 200 (Gong200Sang, 109)
Defendant
Defendant
Attorney Kim Su-ok
Jeju District Court Decision 2007No183 Decided December 27, 2007
The appeal is dismissed.
The defendant and public defender's grounds of appeal are also examined.
Article 10 (1) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) provides for the scope of application of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) "business or workplace which ordinarily employs five or more workers" refers not to a business or workplace with five or more regular employees, but to "business or workplace with five or more regular employees". In this case, the term "regular situation" refers to a situation where the number of workers ordinarily employs five or more persons at a time, and there are cases where the number of workers at a time is less than five or more persons at a time, it refers to the case where the situation is objectively determined by ordinary social norms, and it includes not only the continuous workers in the workplace, but also daily workers employed at that time as well as the workers employed at that time as necessary (see Supreme Court Decision 9Do1243, Mar. 14, 200, etc.).
The court below acknowledged that the (trade name omitted) restaurant operated by the defendant based on the adopted evidence was a restaurant with 61 square meters and 120 seats in alone, but 3 employees, other than the cook, scam and scambling, etc. were always working in the main room, and scambling at least 2 employees were working in the main room. At least 3-4 employees were working in the main room, and there was at least 3-4 employees working in the main room, during the period from October 4, 2002 to August 30, 206, when the number of employees working for Nonindicted Party 1 temporarily was four, but all of the period was 3-4 months or less, and there was no error in the misapprehension of the legal principles or the records as alleged in the ground of appeal by the court below. The court below did not err in the misapprehension of the legal principles as to retirement allowances within 14 days from the retirement date as stated in the judgment of the court below.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)