(b) Where it is deemed that there is an inevitable circumstance in which the funds required for the payment of retirement allowances, etc. were not available, whether the funds required for the payment of the retirement allowances, etc. are included in the written fund implementation plan submitted to the court, or whether the payment of retirement allowances, etc. may be charged to the administrator of the reorganization company who delayed payment of retirement allowances, etc. because there was

(c) The case holding that the court below erred by misapprehending the legal principles on the grounds for exclusion from liability of violation of Article 109 of the Labor Standards Act due to delayed payment of retirement allowances, etc., which rejected Defendant’s assertion on inevitable circumstances where retirement allowances, etc. were not paid

B. Even if the funds required for the payment of retirement allowances, etc. to the retirement allowances, etc. to be incurred by the receiver of the reorganization company were included in the funds execution plan submitted to the court, such circumstance alone cannot be readily concluded that the funds required for the payment of the retirement allowances, etc. were actually prepared or could have been prepared. Thus, in a case where it is deemed that there was an inevitable circumstance where the payment of the retirement allowances, etc. was not possible due to the aggravation of financial situation, it cannot be deemed that the funds required for the payment of the retirement allowances, etc. to be incurred to the reorganization company submitted to the snow company, even though the funds required for the payment were formally included in the funds execution plan submitted to the

C. The case holding that the judgment of the court below which rejected Defendant's assertion on inevitable circumstances where retirement allowances, etc. could not be paid, erred by misapprehending the legal principles on the grounds for the exclusion of liability for violation of Article 109 of the Labor Standards Act due to delayed payment of retirement allowances

Article 30 of the Labor Standards Act provides that an employer shall pay wages, compensations, and other money or valuables within 14 days from the time when the cause for such payment occurred, thereby compelling the employer to liquidate legal relations early in order to promote the stability of the livelihood of retired workers, etc., while delaying the period required for such liquidation. Thus, a violation of Article 109 of the Labor Standards Act due to delayed payment of retirement allowances, etc. shall be established at the time 14 days have passed since the date when the cause for such payment occurred. Therefore, if the employer is a juristic person, the representative who is authorized to pay retirement allowances, etc. at the time when 14 days have passed after the lapse of the above 14 days is in principle liable for the crime due to the delayed payment, and the representative who is deprived of such power due to such reasons as retirement shall not be liable for such crime

According to the records, it can be known that Defendant A had been appointed as Defendant D at the Suwon District Court on September 28, 1992 when Defendant A worked as the representative director of the corporation C, and the order to commence the company reorganization procedure was issued and the company was appointed as the manager of the above company. As such, Defendant A, at the same time, lost the right to manage and dispose of the business and property of the above company at the time when the above order to commence the reorganization procedure was issued. Accordingly, as to the part of the amount to be paid to each retired employee as stated in the facts charged against the above Defendant, 14 days have passed since the date when the cause for payment occurred after the order to commence the above reorganization procedure was issued, the above Defendant cannot be held liable for the crime resulting from delayed payment. According to the judgment of the court below and the first instance court cited by the court below, the court below erred by misapprehending the legal principles as seen above, which affected the conclusion of the judgment.

Then, according to the records, Defendant D was appointed as a manager of the above company on September 28, 1992 under the Company Reorganization Act and then resigned on June 30, 1993 and did not perform his duties as a manager. As such, the above Defendant is deemed not to be liable for delayed payment with respect to the portion of the amount payable to each retired worker as stated in the facts charged of this case, which occurred after the date of the above resignation or 14 days after the date of the occurrence of the cause for payment. According to the reasoning of the judgment of the court of first instance as cited by the court below and the judgment of the court of first instance, the court below erred in the misapprehension of legal principles as to this part, which affected the conclusion of the judgment.

Therefore, the judgment of the court below which sentenced a single punishment on the ground that the violation of the Labor Standards Act in the judgment by the defendants is in the relation of substantive competition by each defendant cannot be maintained as it is by punishing the defendants in this respect.

2. Defendant D’s grounds of appeal are examined.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant D was not responsible for the retirement allowance of retired workers as stated in the facts charged, since the defendant was appointed as the manager of the reorganization company of this case on September 28, 1992 and made best efforts to correct the company's reorganization, but the company's production has been considerably deteriorated and financial standing has not been paid as well as the company's retirement allowance has not been paid as stated in the facts charged. In light of the above evidence, the above defendant's statement of the fund execution plan that the defendant was appointed as the manager of the reorganization company and submitted to the court was not executed, but the agreement on the extension of the date of payment of retirement allowance was not made entirely. Accordingly, the above defendant's best efforts to pay retirement allowance to retired workers during his term of office but it was not possible to pay retirement allowance within the payment period due to management failure, etc., on the ground that the above defendant's criminal liability against the above defendant constitutes a case where criminal liability under the Labor Standards Act is denied.

However, as decided by the court below, even if the funds required for the payment of retirement allowances, etc. to the dismissed in this case were appropriated in the fund execution plan submitted by the above defendant to the court as the manager of the reorganization company, such circumstance alone cannot be readily concluded that the funds required for the payment of the above retirement allowances were actually raised or could have been prepared. Thus, if it is deemed that there was an inevitable circumstance that the above defendant could not raise funds required for the payment of the above retirement allowances, etc. due to the aggravation of financial standing, such as the above defendant's assertion, it shall not be deemed that the above defendant is liable for the crime of default, even though the funds required for the payment of the above retirement allowances were formally appropriated in the fund execution plan of the reorganization company submitted to the court, or there was no

However, according to the records, there is no evidence that the above defendant submitted to the court in accordance with the decision of the court below, and there is no evidence to prove that the funds required for the payment of retirement allowances, etc. were actually prepared or could be prepared in accordance with the fund execution plan. On the other hand, the above defendant since the prosecutor's office, up to the court below's decision, consistently made best efforts to prevent the bankruptcy of the reorganization company, such as the payment of wages to employees after paying the minimum expenses necessary for the continuation of factory operation with funds remaining after the defendant was appointed as the manager of the reorganization company and the court's supervision and labor union, and the above defendant's personal property was offered as security. However, the above retirement allowances, etc. cannot be paid due to the limit of the financial situation, and there are evidence consistent with the argument in the records. Thus, the court below did not err in the misapprehension of legal principles as to the above defendant's assertion because the court below did not err in the misapprehension of legal principles as to retirement allowances, etc., and it did not err in the misapprehension of legal principles as to the remaining grounds for appeal.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Park Jong-ho (Presiding Justice)