근로기준법위반등
The judgment of the court below is reversed.
The sentence of sentence against the defendant shall be suspended.
1. Summary of grounds for appeal;
A. misunderstanding of facts and misunderstanding of legal principles as the Defendant was in the same business relationship with E, and therefore, E does not constitute a worker under the Labor Standards Act, and ② even if E is a worker under the Labor Standards Act, E did not provide labor, thereby making it erroneous in calculating accrued wages and retirement allowances
Nevertheless, the court below found Defendant guilty of the facts charged of this case. The court below erred by misunderstanding facts or by misapprehending relevant legal principles, which affected the conclusion of the judgment.
B. Even if the facts charged of unfair sentencing are found guilty, the lower court’s sentencing (one million won of fine) is too unreasonable.
2. Determination
A. Prior to the judgment on the grounds for appeal by the Defendant’s ex officio determination, the lower court ought to consider ex officio the violation of Articles 109(1), 36 of the Labor Standards Act, and the violation of Articles 44 subparag. 1 and 9 of the Guarantee of Workers’ Retirement Benefits Act as the ordinary concurrent crimes prescribed in Article 40 of the Criminal Act (see, e.g., Supreme Court Decision 2012Do13244, Apr. 25, 2013). In so doing, it erred by misapprehending the legal doctrine on the number of crimes, thereby adversely affecting the conclusion of the judgment.
Although there is a ground for ex officio reversal, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.
B. Determination of the mistake of facts and misapprehension of legal principles regarding whether the defendant is a worker under the Labor Standards Act should be made based on whether the form of contract is an employment contract or the substance of labor provision relationship is a subordinate relationship for the purpose of wages at a business or workplace, rather than whether a labor provider provides labor to an employer.
Here, whether or not there is a subordinate relationship is the contents of business.