[2] The elements for the employer’s disciplinary action against the employee to be subject to criminal punishment under Articles 107 and 27(1) of the Labor Standards Act

[2] In the case of a violation of Article 27 (1) of the Labor Standards Act, which is punished under Article 107 of the same Act, an intentional act is required in accordance with the general penal principle. Thus, even if an employer fails to take certain procedures and thus it is impossible to recognize the validity of disciplinary action, barring any special circumstance such as intentionally disregarding the disciplinary procedure with the employer’s intent to impose unfair disciplinary action, the mere reason for such violation cannot be subject to criminal punishment under Articles 107 and 27 (1) of the Labor Standards Act.

The court, which was remanded from the court of final appeal, shall be bound by the principle of general punishment unless there is a change in the relationship between evidence and evidence which form the basis of continuous judgment after remanding the case to the court of final appeal as a reason for reversal (see Supreme Court Decision 84Do1379, Sept. 11, 1984). In the case of violation of Article 27 (1) of the Labor Standards Act which is punished under Article 107 of the same Act, an intentional act should be required (see Supreme Court Decision 93Do377, May 27, 1994). Thus, even if the effect of disciplinary punishment is not recognized because an employer failed to take the prescribed procedure in imposing disciplinary punishment against an employee, and the employer intentionally disregards the procedure of disciplinary punishment with an intention to impose unfair disciplinary punishment, barring special circumstances such as intentional disregarding the procedure of disciplinary punishment, it shall not immediately be subject to criminal punishment under Article 107 (1) and Article 27 (1) of the Labor Standards Act.

According to the records, the party members reversed and remanded the judgment of the court below (Seoul Criminal Court Decision 93No3476 delivered on October 6, 1993) on this case on June 14, 1994 for the following reasons.

In other words, the judgment of the court of first instance maintained by the court below is that the defendant is ordinarily employed by 210 full-time employees as the representative director of the non-indicted taxi company, and is engaged in the taxi transportation business. On July 10, 191, the above company operated the taxi fare meter, without legitimate disciplinary action, and imposed disciplinary action without justifiable grounds until September 16 of the same year, and violated Article 107 and Article 27 (1) of the Labor Standards Act. However, according to the records, if the defendant applied for the above non-indicted company's personal taxi commission license in 191 and applied for the above non-indicted company's personal taxi commission record (the above non-indicted 1 is anticipated to acquire the above license and to retire from the company if it is difficult to determine that the above defendant's act was conducted on August 20, 191 as part of the defendant's disciplinary action against the above non-indicted company's temporary suspension of employment until the date he was found to have been aware of the above worker's right to suspend employment.

However, according to the records, although the court below newly examined the evidence of the witness Lee Young-young, the non-indicted, and Kim Jong-ho after the above remand judgment, it cannot be concluded that the defendant was aware of the measure of suspension of dispatch as a disciplinary action rather than personnel management. However, the court below acknowledged the fact that the measure of suspension of dispatch constitutes a kind of disciplinary action, and decided that the disciplinary action of this case constitutes a criminal offense on the ground that it is an abuse of disciplinary power in its contents and is punished even in light of social norms, as stated in its reasoning, since the disciplinary action of this case constitutes a criminal offense, the court below did not err in the misapprehension of legal principles as to intentional act in the violation of Article 27 (1) of the Labor Standards Act while reversed and remanded by a party member, and it cannot be ruled that the court below erred in the misapprehension of the judgment below.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)