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(영문) 인천지방법원 2012.12.28 2012노2834

근로기준법위반등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Reasons

1. The lower court’s punishment (one year of imprisonment) against the Defendant is too unreasonable in light of the substance of the grounds for appeal in this case’s sentencing conditions.

2. Before determining the grounds for appeal by the Defendant, the lower court ex officio examined the Defendant’s grounds for appeal, and applied the “Article 109(1) and Article 36 of the Labor Standards Act” to all the act of not paying wages or retirement allowances to 37 workers, including E, among the facts charged in the instant case.

However, pursuant to Article 34 of the Guarantee of Workers' Retirement Benefits Act (amended by Act No. 7339 of January 27, 2005) and Article 34 of the amended Labor Standards Act (amended by Act No. 7339) as well as Article 34 of the same Act, punishment for unpaid retirement allowances to employees after the enforcement date of the above Act should be applied, not

(The part is only different from the name of the crime and the applicable provisions of law, and it is reasonable to view that the facts charged are the same in itself and there is no concern about the substantial disadvantage to the defendant's exercise of his right to defense without any amendment of indictment. Thus, the judgment of the court below that applied the Labor Standards Act only to the facts charged is erroneous in the application

3. In conclusion, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

The summary of facts and evidence recognized by the court is the same as that of each corresponding column of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant statutory provisions concerning criminal facts, Articles 109(1) and 36 of the Labor Standards Act regarding the choice of punishment (the fact that money and other valuables are not paid) and Articles 31 and 9 of the former Guarantee of Workers' Retirement Benefits Act (amended by Act No. 10967, Jul. 25, 201).