Therefore, if an employer issued a notice of imposition of a non-performance penalty pursuant to a written notice of imposition of a non-performance penalty stating that it exceeds the content of an obligation under the administrative law, and imposed a non-performance penalty on the ground that it failed to perform the same, barring special circumstances, the pre-announcement of imposition of a non-performance penalty is unlawful as it goes against the purpose of the non-performance penalty system, and thus, is unlawful.

1. Article 33(1) of the Labor Standards Act provides, “The Labor Relations Commission shall impose a non-performance penalty not exceeding KRW 20 million on an employer who fails to comply with the order for remedy by the deadline for the performance thereof.” Article 33(2) provides, “The Labor Relations Commission shall inform the employer in writing that the employer will impose and collect the non-performance penalty not later than 30 days prior to the imposition of the non-performance penalty pursuant to paragraph (1).” Article 78 of the Labor Relations Commission Regulations enacted upon delegation of Article 25 of the Labor Relations Commission Act provides, “The Labor Relations Commission shall promptly confirm whether the period for performance of the order for remedy, such as unfair dismissal, expires after the deadline for performance expires.” Article 80(1) provides, “The Labor Relations Commission shall give advance notice to an employer who fails to comply with the order for remedy in accordance with the advance notice for the imposition of non-performance penalty (attached Form 25) by 30 days prior to the scheduled date for the imposition of the non-performance penalty.”

However, in a case where a non-performance of the duty of omission or non-alternative action under the Administrative Act is not performed, the enforcement fine is an indirect means of administrative compulsory execution to ensure the performance of the duty in future by providing psychological pressure to the obligor by “a prior warning that a certain monetary burden would be imposed if the obligation is not performed by a given time limit,” and the Labor Relations Commission’s imposition of enforcement fine that the Labor Standards Commission has to impose pursuant to Article 33 of the Labor Standards Act, and such notice constitutes “a prior notice” in which the Labor Standards Commission has to impose the enforcement fine by 30 days prior to

Therefore, if an employer issued a notice of imposition of enforcement fines pursuant to a written notice of imposition of enforcement fines, stating that it exceeds the obligation under the administrative law, and imposed enforcement fines on the ground that it failed to comply with it, barring special circumstances, such as that the excess is minor, the notice of imposition of enforcement fines is unlawful and contrary to the purport of the enforcement fines system, and the imposition of enforcement fines based on such excess is also illegal.

2. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment as cited by the lower court, and the record reveals the following facts.

A. On November 15, 2007, the Plaintiff was engaged in the taxi transport business, etc. by employing 140 regular workers, and the Nonparty and 114 employees, et al. (hereinafter “instant workers”), who are the Plaintiff’s employees, were in violation of the Plaintiff’s decision to suspend the payment of value-added tax, thereby interfering with the Plaintiff’s business (hereinafter “instant suspension of service”).

B. On February 14, 2008, the instant worker asserted that the suspension of work on board constituted unfair suspension of work on board, and filed a remedy with the Defendant. On April 7, 2008, the Defendant issued a remedy order against the Plaintiff stating that “within 30 days from the date of receipt of the written adjudication, the instant worker was reinstated to his former former job, and that “if the instant worker had provided his normal work during the period of suspension of work on board, the amount equivalent to the wages that could have been received would have been paid” (hereinafter “the instant remedy order”).

C. Upon the lapse of May 26, 2008, the due date stipulated in the instant order for remedy, the Defendant issued a notice of a non-performance penalty to the Plaintiff on May 27, 2008, on the ground that “the content of failure” was not paid at all, on the ground that “the work on board was commenced from May 16, 2008, but the amount equivalent to the wages was not paid at all,” pursuant to the notice of imposition of non-performance penalty, namely, the non-payment of the amount equivalent to the wages from November 15, 2007 to May 15, 2008, and on the ground that the Plaintiff failed to perform the “matters of failure”, the Defendant imposed the non-performance penalty (i.e., KRW 282.5 million x 113 x 113) on September 9, 208 (hereinafter “instant disposition”).

D. Meanwhile, on April 30, 2008, the Plaintiff filed an application for reexamination of the instant remedy order, and on August 29, 2008, filed a lawsuit seeking revocation of the application for reexamination by the National Labor Relations Commission. On June 22, 2010, the Seoul High Court rendered a judgment on June 22, 2010 that “the part concerning the reinstatement of the original position and the payment of wages after January 1, 2008” was revoked, and the appeal by the National Labor Relations Commission was dismissed on December 9, 2010.

E. Accordingly, on January 17, 201, after the closing of argument in the lower court, the National Labor Relations Commission rendered a second-disposition that cancels the part concerning the reinstatement of the instant remedy order and the payment of wages after January 1, 2008.

3. Examining these facts in light of the legal principles as seen earlier, the part concerning the reinstatement of the instant remedy order and the payment of wage equivalent after January 1, 2008 was revoked due to the second disposition by the National Labor Relations Commission, and the same effect as that of the first order had never been issued from the beginning. Accordingly, the Plaintiff bears only the obligation under the Administrative Act concerning the payment of wages from November 15, 2007 to December 31, 2007 upon the instant remedy order. However, the Defendant deemed the Plaintiff’s failure to pay the amount equivalent to wages from November 15, 2007 to May 15, 2008 by deeming the Plaintiff’s failure to pay the amount equivalent to wages, and thus, the enforcement fine or the instant disposition was unlawful, barring special circumstances.

Meanwhile, the part concerning the reinstatement of the instant remedy order among the original position and the payment of wages after January 1, 2008 is revoked due to the determination of re-disposition by the National Labor Relations Commission. However, this constitutes a ground for retrial under Article 451(1)8 of the Civil Procedure Act, which is applicable mutatis mutandis by Article 8(2) of the Administrative Litigation Act, “when an administrative disposition, which forms the basis of the judgment, was altered according to other administrative dispositions,” and the Plaintiff may submit the said ground for appeal (see Supreme Court Decision 2000Da41349, Jan. 16, 2001).

Ultimately, under the premise that the order for remedy of this case is wholly effective, the court below erred by misapprehending the legal principles as to the imposition of enforcement fines, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. 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 on the bench.

Justices Park Sang-ok (Presiding Justice)