[2] The case affirming the judgment below holding that the existing representative director of the existing company is the employer's status in relation to the workers belonging to the small president corporation, in case where the existing company established the small president corporation under the pretext of business rationalization, and paid wages directly to its employees, and is engaged in specific and direct management and supervision of personnel and labor management

[3] Whether a simple business failure constitutes an exemption from liability for a violation of the duty to pay wages and retirement allowances under the Labor Standards Act (negative)

[2] The case affirming the judgment of the court below which held that the existing representative director of the existing company is the employer's status in relation to the workers belonging to the small president, in case where the existing company established the small president corporation under the pretext of business rationalization and paid direct wages to its employees, and is also specific and direct management and supervision of personnel and labor management

[3] The crime of violating the obligation to pay wages and retirement allowances as stipulated in Articles 112, 36, and 42 of the Labor Standards Act is exempted only when the employer has made the best efforts to pay the wages and retirement allowances, but it is deemed that there is an inevitable circumstance that the employer could not pay the wages within the due date due to financial circumstances, etc. due to financial depression, etc., and the employer cannot be exempted from its liability merely because the employer was unable to pay the wages and retirement allowances by

1. On the first ground for appeal

A. In a case where a part of an existing company's human organization in the production sector is separated from a so-called so-called small president company, in order to see a person engaged in the production business of an existing company in the existing company's place of business as an employee of the existing company, the existence of the small president company to which he belongs, such as that the small president company, as the business owner, has no identity or independence, can be deemed to be identical with one of the existing company due to lack of independence, is merely formal and nominal, and in fact, the employee concerned must be able to be in a subordinate relationship with the existing company (see Supreme Court Decisions 78Da1530, Jul. 10, 1979; 9Ma628, Jul. 12, 199; 97Nu1946, Nov. 12, 199).

B. Review of the evidence of the first instance judgment maintained by the lower court reveals the following facts.

On January 1, 1997, the defendant, as the representative director of a corporation 1, established the so-called four so-called 'the so-called 'the so-called 'the so-called 'the so-called 'the corporation' by production items, such as Co., Ltd. 2, 3, 4 and 5, under the pretext of business rationalization through the improvement of productivity. The defendant, as the representative director of a corporation 1, established the 'the 'the 'the 'the 'the 'the 'the 'the 'the ' corporation' by production items' as the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the ' corporation' corporation' by promising the workers engaged in production activities to submit a resignation and

The method of operation is 98% of the total number of shares issued by the small-scale corporation of 1 corporation and 2% of the total number of shares issued by the small-scale corporation of 1 corporation (in fact, shares equivalent to 1% of the remaining 2% of the total shares issued by the small-scale president, etc. are owned by the small-scale president, etc.). When the small-scale director intends to employ workers, he shall request the small-scale corporation 1 to conduct personnel exchange between executives and employees of 1 corporation and employees of the small-term corporation, and shall conduct recruitment advertisement under his name. At the time of interview, he shall participate in the small-scale factory head of 1 corporation and exercise influence, and the small-scale corporation shall entrust them to 1 corporation, instead of the absence of the department or employee in charge of personnel affairs, accounting and management essential to the small-scale corporation organization. The small-scale corporation itself has concluded a discretionary processing contract with 1 corporation, without installing production facilities in accordance with its main text, and has no record of production activities that it purchased and provided by 1 corporation.

Therefore, it is difficult to understand that the shortage of wages of workers is the difference between factories and production facilities, and when concluding a contract for clinical processing, it is agreed that the company 1 shall make up for the shortage of wages of workers when concluding the contract. Furthermore, in lieu of paying the commission fee to the small president corporation by being entrusted with the business of accounting, etc. of the small president corporation, the company 1 paid wages directly to its employees and pays the commission fee to the small president corporation, and the labor management has also been specifically and directly managed and supervised by the management department of the corporation in exclusive charge of the small president, the corporation head of the corporation and the so-called 'employee volunteer team', which is called the 1 affiliated company and the so-called 'factory head of the corporation and the so-called 'employee volunteer team'.

C. In light of the aforementioned legal principles and the circumstances as seen earlier, the small president corporation is merely a formal and nominal relationship because it has no identity as a business owner or lack of independence with one department of the stock company 1, and its existence is merely a formal and nominal one. Therefore, its employees cannot be deemed as having provided labor to the stock company 1 under the management and supervision of the stock company 1, and the wages are paid from the stock company 1.

Therefore, the defendant, who is the representative director of the corporation 1, is in the employer's position in relation to the workers belonging to the president of the corporation, and all of the facts charged in this case is justified in the judgment of the court of first instance which has maintained the judgment that found all of the facts charged in this case guilty, and there is no error of law by misunderstanding facts against the rules of evidence, or by misunderstanding the legal principles as to the fundamental rights of

The grounds of appeal disputing this issue are rejected.

2. On the second ground for appeal

The crime of violating the obligation to pay wages and retirement allowances as stipulated in Articles 112, 36, and 42 of the Labor Standards Act is exempted only when the employer has made the best efforts to pay them. However, it is acknowledged that there is an inevitable circumstance that the employer could not pay them within the due date due to financial circumstances, etc. due to financial depression, etc., and the employer cannot be exempted from its liability merely with the fact that the employer was unable to pay them by receiving financial pressure due to financial depression, etc. (see Supreme Court Decision 97Do1490 delivered on September 30, 197).

In light of the records, the decision of the court below that rejected the defendant's assertion that he did not have the obligation to pay wages and retirement allowances, is not recognized to have made every effort for the payment of wages and retirement allowances, and thus, it is acceptable to accept the decision of the court below that he did not have the possibility of expectation in the same purport or constitutes an emergency evacuation, and there

The ground of appeal disputing this issue is rejected.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)