B. Violation of the Wage Claim Guarantee Act

2.(a) B

3.(a)(b) C.

4.2.D.

5.2.2. E

Attorney G, H, I, J, K, L, M, N,O, P

Defendant A shall be punished by imprisonment with prison labor for four years and by imprisonment for three years.

2. Defendant C

Defendant C shall be punished by imprisonment for three years.

However, with respect to the above accused, the execution of the above sentence shall be suspended for four years from the date this judgment becomes final and conclusive. The above accused shall be ordered to provide community service for 80 hours.

3. Defendant D and Defendant E

Defendant D shall be punished by a fine of KRW 7 million, and Defendant E shall be punished by a fine of KRW 4 million. In the event that the above Defendants fail to pay the above fine, each of the above Defendants shall be confined to each of the above Defendants on a one-day basis.

The above Defendants shall be ordered to pay the amount equivalent to the above fines.

1. Defendant A, Defendant B, and Defendant C were the representatives of R (hereinafter referred to as “R”) for vessel manufacturing companies located in Q Co., Ltd. (hereinafter referred to as “ Q”), Defendant B was the founders subject to the punishment of Defendant A, and Defendant C was the site manager in charge of R’s pipeline part. Since Defendant B was unable to work due to the deterioration of health due to the heart surgery around December 2012, Defendant A was the site manager in charge of R’s pipeline part, Defendant A was operating R in substance on behalf of Q, such as entering into various meetings, such as entering into a subcontract contract of Q, signing a cooperation company meeting held in Q, granting wages, and determining employment of employees. Defendant B was mainly involved in the decision-making by phone from Defendant A or accounting staff, etc., and both Defendant A and Defendant B were the wage users as prescribed by the Labor Standards Act.

When R's liabilities have been accumulated, the above Defendants decided by making a false report on closure of business and conspired to change the name of the company to T Co., Ltd. (hereinafter referred to as "T") and to continue the same business on their own.

According to the above public offering, Defendant A and Defendant B deposited KRW 163,62,705 from Q to Q’s account on March 16, 2015. On the same day, Defendant A transferred KRW 123,50,000 out of the money to U, V’s seat account, and Defendant B continued to use KRW 43,500,000 by means of re-transfer or cash withdrawal, and Defendant B’s 80,000,000 won and KRW 80,000,000 each. Accordingly, Defendant A and Defendant B collected funds that they invested in R’s property, and eventually made it difficult to pay wages. Defendant A and Defendant B continued to establish QY’s exclusive business owner’s name on the ground of business failure on April 1, 2015, and Defendant B continued to use the Plaintiff’s business owner’s name on the date of the first public offering, and Defendant B continued to use the Plaintiff’s business owner’s name on the date of the first public offering.

Therefore, R is not a place of business in the process of business closure or business closure, so R is not a place of business subject to recognition of bankruptcy, etc. under the Wage Claim Guarantee Act.

Defendant A and Defendant C stated that R’s workers would be paid wages by substitute payment, and that “business will continue” will continue to exist, following workers who introduced a certified labor affairs consultant A to the workers at the time AA was delegated by Defendant C, who was the representative of the workers at the time AA was delegated by the said workers, and requested the Busan Regional Employment and Labor Agency to file an application for recognition of bankruptcy, etc. with the Busan Regional Employment and Labor Agency on April 24, 2015.

Defendant C continued to work in T, and retired from R on April 1, 2015, 14, after being aware of disguised closure, etc., of AB’s bankruptcy, etc., the Busan Regional Employment and Labor Agency: “The employer is not likely to resume its business;” and Defendant B also closed its business on May 14, 2015, with the investigation of bankruptcy, etc. conducted by the said Changwon, on April 1, 2015, on the following grounds: “AB was the manager of the R’s office, and the third party did not transfer its business and business to the third party, and there was no plan to resume its business.” In addition, Defendant C, upon receiving the direction of the 20th Regional Employment and Labor Agency from the 5th Regional Employment and Labor Agency, provided that Defendant C was not subject to punishment B, and Defendant B and the 20th Regional Employment and Labor Agency’s employees under the direction of the 20th Regional Employment and Labor Agency’s 5th Regional Employment and Labor Standards Act.”

The above Defendants were to have the Busan Regional Employment and Labor Agency rendered a decision to recognize bankruptcy, etc. on May 5, 2015 and 26, and on the same day, notified the Korea Labor Welfare Corporation of the recognition of bankruptcy, etc.

As a result, the Defendants conspired to give 6 workers a total of 55,427,510 won of substitute payments, as shown in the attached Table of Crimes, to the victim's Labor Welfare Corporation notified of the recognition of the above bankruptcy, etc. from June 10, 2015 to September 2, 2015, and acquired it by fraud or other improper means, and at the same time, had workers receive substitute payments by fraud or other improper means.

2. Defendant D

Defendant D, as a field manager in charge of R’s freezing, requested a substitute payment with knowledge of the fact that R is unable to receive a substitute payment because it is not a place of business in the process of discontinuance of the project or discontinuance of the project, and received KRW 13,800,000 from the Korea Workers’ Compensation and Welfare Service on June 10, 2015.

As a result, the defendant received a substitute payment by fraud or other improper means.

3. Defendant E

Defendant E, as an employee of the R’s pipe part, lent the name of T representative director, and as above, R is unable to receive a substitute payment with knowledge of the fact that it is not a place of business in the process of discontinuance of business or discontinuance of business, Defendant E applied for a substitute payment and received KRW 6,641,160 from the Korea Workers’ Compensation and Welfare Service on June 10, 2015. Accordingly, Defendant received a substitute payment by fraudulent or other illegal means.

Summary of Evidence

1. Each legal statement of the witness AD, AE, AF, and AG;

1. Each prosecutor's interrogation protocol against the Defendants

1. Statement by the prosecution against S;

1. Each investigation report (in addition to data related to internal investigation B, a copy of the complaint filed against overdue wages B, a withdrawal of complaint filed, a confirmation of succession to a worker, R-type register of vehicle owned, response to a request for data related to investigation, results of financial account tracking warrant execution, payment status of substitute payments for foreign workers, details of payment of substitute payments and employment insurance history verification, results of office search and seizure, results of mobile analysis, results of mobile analysis, results of the second financial account tracking warrant execution results, results of scam analysis) and the application of each Act and subordinate statute;

1. Article applicable to criminal facts;

- Defendant A, B, and C: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(2) and 30 of the Criminal Act (the act of obtaining substitute payment by fraud), Articles 28(1)2 and 7 of the Wage Claim Guarantee Act, Article 30 of the Criminal Act (the act of allowing workers to receive substitute payment by fraud, etc.)

- Defendant D and E: Superior concurrences under Articles 28(1)1, 7(1), and 7(1) of the Wage Claim Guarantee Act

Defendant A, B, and C: Articles 40 and 50 of each Criminal Code (Punishments imposed on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with heavier punishment)

1. Selection of punishment;

- Defendant D and E: Each selective fine

1. Detention in a workhouse;

- Defendant D and E: Articles 70(1) and 69(2) of the Criminal Code

1. Suspension of execution;

Defendant C: Article 62(1) of the Criminal Act ( considered as favorable circumstances, etc. among the reasons for sentencing below)

1. Social service order;

- Defendant C: Article 62-2(1) of the Criminal Act

1. Order of provisional payment;

- Defendant D and E: Determination on the allegations of Defendants and defense counsel under Article 334(1) of the Criminal Procedure Act

1. Determination on the part related to Defendant A, B, and C

(a) Relevant legal principles;

Article 28 (1) 2 of the Wage Claim Guarantee Act provides that a person who causes another person to receive a substitute payment under Article 7 of the same Act by "a fraudulent or other unlawful means" shall be punished. Here, "any fraudulent or other unlawful means" refers to the affirmative or passive act that is recognized as a deceptive scheme used to receive a substitute payment under the Wage Claim Guarantee Act, although it is not possible to receive a substitute payment under normal procedures under the same Act, and is recognized as an unlawful means by social norms, and that may affect the decision-making on the payment of a substitute payment. Although an employer fails to meet the requirements under each subparagraph of Article 5 (1) of the Enforcement Decree of the Wage Claim Guarantee Act, if the Minister of Employment and Labor grants a substitute payment to a worker on behalf of the employer, he/she shall be subject to a substitute payment that cannot be paid through legitimate procedures, and thus constitutes "other fraudulent or unlawful means."

B. In full view of the evidence duly admitted and examined by the court, the following facts are recognized.

① R as a vessel manufacturer, mainly carried out the subcontracted business from Q, and paid workers wages, etc. due to progress payments, etc. received from Q.

② Defendant A is a person in charge of R’s business management, and Defendant B is an employer under the Labor Standards Act. The above Defendants are employers who are obligated to pay wages and retirement allowances to R’s employees.

(3) In order to obtain recognition from the Minister of Employment and Labor that an employer has no ability to pay unpaid wages, etc. pursuant to Article 7 (1) 3 of the Wage Claim Guarantee Act (hereinafter referred to as "recognition of bankruptcy, etc."), an employer shall meet the practical requirements that the relevant business is discontinued or discontinued, and that the employer has no ability to pay wages, etc. or is significantly difficult (Article 5 (1) of the Enforcement Decree of the Wage Claim Guarantee Act).

④ On March 16, 2015, Q paid the progress payment of KRW 163,662,705 to the R’s account. However, Defendant A and Defendant B did not pay the progress payment as wages to workers. On the same day, Defendant B transferred KRW 123,50,000 to the U.S. and V’s account, which is the seat of Defendant B, and subsequently, Defendant A was finally divided KRW 43,50,000, and Defendant B divided KRW 80,000 by re-transfer or cash withdrawal.

⑤ Defendant C and the chief of the field office of the pipeline part stating to the effect that, on March 2015, Defendant C could not pay a monthly salary that would have to be paid on March 15, 2015 because it was difficult for the company to make it difficult for RR workers who were not paid wages. However, the fact that the company’s trade name is changed, and that the workplace or environment does not change.

④ Defendant A and Defendant B filed a report on the closure of business of R on April 1, 2015, on the grounds of business depression, and Defendant A established T in the same location as R on the same day (Yinjin-gu, Changwon-si) as one’s own representative, and T continued to perform Q’s subcontracted business, which R performed without suspension.

7) On March 31, 2015, Defendant C, as a representative of R workers, delegated all the authority to apply for substitute payment to Certified Public Labor Attorneys AA. On April 9, 2015, Defendant C filed a complaint for the suspicion of delinquency in payment of retirement pay and retirement pay of Defendant B with the delegation of 67 R workers (including E and AC, the children of Defendant A, and the children of Defendant B) with the Busan Regional Employment and Labor Agency on April 9, 2015, even if there was no intent to be punished for Defendant B upon consultation with the Certified Public Labor Attorney A.

8. On April 24, 2015, Certified Public Labor Attorney A filed an application for recognition of bankruptcy, etc. with the Changwon of the Busan Regional Employment and Labor Agency.

① On May 12, 2015, Defendant B closed the business as a suspect at the Changwon Labor Office of Busan, and stated to the effect that Defendant B was in arrears with the total of KRW 208,572,070, and the total of KRW 421,161,360, and the total of KRW 629,73,430, including retirement pay of KRW 421,161,360, and the total of KRW 629,73,430.” On May 14, 2015, “R was investigated as a business owner due to business deterioration, and there was no transfer of business and business to a third party, and there was no plan to resume the business.”

① On May 14, 2015, Defendant C stated to the effect that, upon being investigated as an applicant by the Busan Regional Employment and Labor Agency, R was transferred to a third party due to business deterioration, such as unit price reduction, and that, on the other hand, there is no possibility that the business owner may resume.

① On May 26, 2015, the creative branch of the Busan Regional Employment and Labor Agency decided to recognize the existence of bankruptcy, etc., and on the same day notified the Korea Workers’ Compensation and Welfare Service of the recognition of the existence of bankruptcy, etc. (hereinafter “Korea Workers’ Compensation and Welfare Service”). On May 13, 2015, Defendant C prepared a written withdrawal of a complaint for the sake of Defendant B and Defendant A4, received the written withdrawal of the complaint from other workers. On May 27, 2015, the written withdrawal of the complaint against Defendant B was submitted to the Busan Regional Employment and Labor Agency.

③ On June 3, 2015, the Busan Regional Employment and Labor Office rendered a non-prosecution on the charge of violating the Labor Standards Act and the Act on the Guarantee of Workers’ Retirement Benefits (no prosecution right) to the original District Prosecutors’ Office. On June 8, 2015, the original District Prosecutors’ Office rendered a disposition that “no prosecution right is available against Defendant B’s above suspicion.”

① The Korea Workers’ Compensation and Welfare Service entrusted with the Minister of Employment and Labor from June 10, 2015 to September 1, 2015, paid 55,427,510 won in total to 66 R workers as shown in the list of crimes attached hereto.1 p.m., the Defendant stated to the effect that “Defendant A, in the course of the prosecutor’s investigation, made a decision to discontinue the business to pay wages to workers together with the Defendant B,” and that “the Plaintiff closed the business in order to not pay wages to workers according to the Defendant B’s decision” (Article 1,883, 2,523 page of the Investigation Records). 6. 6. T&T’s succession to the business of R recorded the net income of KRW 109,865,876 from March 25, 2015 to September 12, 2015.

C. Determination on this part of the facts charged

Examining the above facts and the following circumstances acknowledged based on the above evidence in light of the legal principles as seen earlier, Defendant A, Defendant B, and Defendant C conspired to obtain the recognition of bankruptcy, etc., but the Korea Labor Welfare Corporation entrusted by the Minister of Employment and Labor with the recognition of bankruptcy, etc. by improper means may recognize the fact that: (a) the Korea Labor Welfare Corporation, on behalf of the R’s business owner, caused the R to pay a substitute payment that cannot be paid in accordance with the legitimate procedure; and (b) the act constitutes an act of making another person receive a substitute payment at the same time as the act of obtaining a substitute payment by fraudulent or other unjust means, and at the same time, the act

① Defendant A and Defendant B submitted a written withdrawal of a complaint against the Defendant B immediately after the Plaintiff filed a complaint with the R Workers’ representative on the suspicion of delinquency in payment of wages and retirement allowances and received progress payment from Q on March 16, 2015, which was 163,662,705 won for the payment of wages from February 2015, and subsequently divided the amount of KRW 123,50,000 from R’s account. Defendant C, as the representative of R Workers, submitted a written withdrawal of a complaint against the Plaintiff B. This constitutes an act to formally satisfy the requirements for the payment of substitute payment, which is either incapable of paying wages, etc. or significantly difficult to pay.

② Defendant A is an employer who is obligated to pay wages and retirement allowances to R’s workers. As such, Defendant A: (a) aware that a business owner is an employer who establishes and operates Q Q’s subcontracting business that the R had been performed without interruption of the said business, the substitute payment cannot be made due to the discontinuance of the business; and (b) was unable to be exempted from the obligation to pay wages and retirement allowances to R’s workers; and (c) registered T’s representative in the name of E for the purpose of avoiding this.

③ Defendant B transferred R’s physical and human structure to T without maintaining its identity, and “R was investigated as a business owner at the Changwon District Office of Busan Regional Employment and Labor Office and made a false statement to the effect that it did not transfer its business and business to a third party”, and T performed Q subcontracting work previously conducted by R.

④ Defendant C, as a representative of R’s field director and workers, filed an application for substitute payment with a well-known knowledge of the above fact. Defendant C falsely stated that “R was investigated as an applicant at the creative branch of the Busan Regional Employment and Labor Agency, and there was no fact that it transferred the business and business to a third party.”

⑤ Due to the above series of acts by Defendant A, B, and Defendant C, the Korea Workers’ Compensation & Welfare Service paid a substitute payment that cannot be paid to R’s employees in accordance with due process. Accordingly, Defendant A and Defendant B exempted R’s obligation to pay wages and retirement allowances to R’s employees, and at the same time exempted Defendant A from criminal liability for delayed payment of wages and retirement allowances, Defendant A maintained the status of T’s employer.

D. Determination as to the above Defendants and their defense counsel's assertion

The above Defendants and defense counsel asserted that R is a legal entity entirely different from R and T in light of R’s actual inspection and discontinuance of business, the details of the R’s actual inspection and establishment, and the organization, property, business, operation, etc. of R and T, and therefore, R and T are not a disguised discontinuance of business.

However, in full view of the facts and circumstances as seen earlier and the following circumstances, Defendant A and Defendant B were found to have discontinued the R formally in order to maintain their status as the business owner, even though they were exempted from the obligation to pay wages and retirement allowances to the R’s workers upon receiving substitute payment by unlawful means, and Defendant A merely established T with the physical and human organization of R maintained its identity. Thus, the above Defendants and the defense counsel’s assertion cannot be accepted. 1 T continued employment of 41 out of 67 R’s 67 workers under the same working conditions, and five of them were succeeded to AH, a subordinate business of T.

(2) T is continuously using three rp trucks (automobile registration number: X, Y, Z) which are owned by R without changing the name thereof, and is using physical facilities (offices, container, computer, etc.), certificate of the name of R, etc. used by other R as it is, and keeps documents, computer files, etc. prepared before 2014.

③ Since Defendant A was the sole internal director of R around March 2015, he was the only internal director of R, Defendant A had no reason to close the R for the sake of changing the actual business owner and to establish T in the name of E for the purpose of receiving a substitute payment.

2. Determination as to Defendant D and E-related parts

A. As seen earlier, R’s business owner was unable to receive a substitute payment in due process due to the failure to meet the substantive requirements for obtaining recognition of the existence of bankruptcy, etc.

B. In full view of all the circumstances seen earlier and the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the said Defendants may be recognized as having filed a substitute payment with the knowledge of the fact that the said Defendants were unable to receive the substitute payment, because they were not in the process of discontinuance of their business.

1) Defendant D was a field manager in charge of R's freezing, and after T is established, Defendant D was sub-subcontracted with the name of "AH" as an individual business operator, and T and AH are also employed as accounting personnel and offices.

② On March 20, 2017, at the time of search and seizure by the prosecution, Defendant D stated to the effect that he/she is a de facto employee of T and H’s office.

(3) Defendant E was employed as a member of R as Defendant A’s A’s son, and was a representative in the name of T in fact, and served as T’s employee.

④ As seen earlier, Defendant D and C knew that there was a substantial succession to the business between R and T, and that the actual owner of T was A, who was the representative of R, applied for a substitute payment and received the substitute payment.

Reasons for sentencing

1. Defendant A

(a) Scope of punishment by law: Imprisonment with prison labor for not less than three years;

(b) Scope of recommendations on the sentencing criteria: In the case of ordinary concurrent crimes, the sentencing criteria shall not apply. Determination of sentencing standards shall be applied.

(1) Unfavorable circumstances

- The amount of damage of this case reaches 55,427,510 won

- Defendant A, with expert assistance, planned the means and methods of committing the instant crime with his accomplices in advance, was led to the instant crime, and Defendant A obtained the largest benefit by avoiding the R’s obligation to pay wages to the R workers, and maintaining the status of T’s business owner.

Workers who received substitute payment after deducting fees from certified labor affairs consultant AA, thereby causing substantial damage equivalent to the fees for the crime of this case.

- Defendant A does not take any measures to recover damage to the victim and workers.

Preferential Terms and Conditions favorable

- Defendant A has no record of being punished for the same crime or of being punished in excess of the fine

◎ 그 밖에 피고인 A의 나이, 성행, 범행의 동기와 수단, 범행 후의 정황 등 이 사건 재판 과정에서 나타난 제반 양형 요소를 종합적으로 고려하여 주문과 같이 형을 정한다.

2. Defendant B

(a) Scope of punishment by law: Imprisonment with prison labor for not less than three years;

(b) Scope of recommendations on the sentencing criteria: In the case of ordinary concurrent crimes, the sentencing criteria shall not apply. Determination of sentencing standards shall be applied.

◎ 불리한 정상이 사건 피해액이 555,427,510원에 달함 피고인 B는 전문가의 조력을 받아 공범들과 함께 범행의 수단과 방법을 사전에 치밀하게 계획하였음 피고인 B는 이 사건 범죄로 R의 근로자에 대한 임금지급 채무를 면하는 이득을 얻었음 근로자들은 공인노무사 AA에 대한 수수료를 공제하고 체당금을 받았기 때문에 이 사건 범죄로 그 수수료 상당의 실질적인 손해를 입었음 피고인 B는 피해자 및 근로자들의 피해 회복을 위한 아무런 조치도 취하지 아니함

◎ 유리한 정상

Defendant B has no record of being punished for the same crime or of being punished in excess of the fine.

- Defendant B is old and healthy

(6) The punishment as ordered shall be determined, comprehensively taking into account all the factors of sentencing revealed in the instant trial process, such as Defendant B’s age, character and conduct, motive and means of the crime, and circumstances after the crime.

3. Defendant C.

(a) Scope of punishment by law: Imprisonment with prison labor for not less than three years;

(b) Scope of recommendations on the sentencing criteria: In the case of ordinary concurrent crimes, the sentencing criteria shall not apply. Determination of sentencing standards shall be applied.

(1) Unfavorable circumstances

- The Defendant C did not take any measures to recover the damage suffered by the victims and workers, as the workers who reached KRW 55,427,510, after deducting fees from certified labor affairs consultant A and receiving substitute payment. As such, Defendant C did not take any measures to recover the damage to the victims and workers.

Preferential Terms and Conditions favorable

Defendant C’s participation in the instant crime is relatively low, and Defendant C did not take any advantage other than wages that the said Defendant could have lawfully received for the instant crime, and there are circumstances to take into account the circumstances leading by R’s business owner (Defendant B) and representative (Defendant A) as R’s staff members.

◎ 그 밖에 피고인 C의 나이, 성행, 범행의 동기와 수단, 범행 후의 정황 등 이 사건 재판 과정에서 나타난 제반 양형 요소를 종합적으로 고려하여 주문과 같이 형을 정한다.

4. Defendant D

(a) Scope of punishment by law: A fine not exceeding 30 million won;

(b) Scope of recommendations on the sentencing criteria: The sentencing criteria shall not apply when a fine is selected;

◎ 불리한 정상

Defendant D did not take any measure to recover damage to the victim.

(1) favorable circumstances

Defendant D did not take any profit other than wages that the above Defendant could have been lawfully entitled to receive for the instant crime.

- Defendant D has no record of being punished or sentenced to a fine for the same kind of crime, and has no record of being punished in excess of the fine, by comprehensively taking into account all the factors of sentencing as shown in the trial process of this case, including the age, character and conduct, motive and means of the crime, and circumstances after the crime, etc.

5. Defendant E

(a) Scope of punishment by law: A fine not exceeding 30 million won;

(b) Scope of recommendations on the sentencing criteria: The sentencing criteria shall not apply when a fine is selected;

◎ 불리한 정상

- A favorable condition in which Defendant E does not take any measure for the recovery of the victim’s damage

- Defendant E did not take any benefit other than the wages that the above Defendant could have lawfully received due to the instant crime.

(6) The punishment as ordered shall be determined, comprehensively taking into account all the factors of sentencing revealed in the instant trial process, such as Defendant E’s age, character and conduct, motive and means of a crime, and circumstances after a crime.

Judges Kim Gin-soo

Judges flooded Jins

2) Since the payment date of substitute payment No. 58 of the [Attachment 58] No. 58 on September 1, 2015, the crime was modified ex officio (No. 1,523 of the Investigation Record).

[3] Supreme Court Decision 97Do813 delivered on November 11, 1997; Supreme Court Decision 2000, 1, 18 delivered on November 11, 1997; Supreme Court Decision 99Do2910 delivered on November 1, 199

4) Defendant A did not appear to be a suspect in a case of violation of the Labor Standards Act due to delayed payment of wages, but Defendant A’s wages to employees.

There is possibility of criminal punishment because of the duty to pay.