[2] In a case where an employer fails to pay the total amount of annual leave allowances at the due date, whether a violation of Articles 109(1) and 43(1) of the Labor Standards Act is established (affirmative)

[3] In a case where the defendant, as the representative director Gap corporation, was indicted for violating Articles 109(1) and 43(2) of the Labor Standards Act on the ground that he did not pay the annual leave allowance of Gap workers on the regular payment date, the case holding that the judgment below which acquitted the defendant on the charge of violating Articles 109(1) and 43 of the Labor Standards Act was erroneous in the misapprehension of legal principles as to the establishment of a violation

[4] Requirements for an employer’s lock-out to be recognized as a legitimate industrial action / Where a lock-out is deemed lawful, however, in the event that a lock-out continues to exist and the employer’s aggressive nature of a lock-out has been changed to an aggressive purpose to actively weaken the trade union’s organizational power while maintaining the lock-out, even though the workers were to discontinue the industrial action and actually return to work, whether the subsequent lock-out is justified (affirmative

[5] In a case where a certain number of workers participating in an industrial action led by a trade union committed an illegal act of violence, etc., whether the industrial action as a whole is unlawful as a matter of course (negative)

[2] In light of the legislative intent of Article 43 of the Labor Standards Act, since the annual leave allowance is not regularly paid on the fixed day of each month, it cannot be immediately applicable under Article 43(2) of the Labor Standards Act, but if an employer did not pay the full amount at the due date, it constitutes a violation of Articles 109(1) and 43(1) of the Labor Standards Act.

[3] In a case where the defendant, as the representative director Gap corporation, was indicted for violation of Articles 109(1) and 43(2) of the Labor Standards Act because he did not pay the annual leave allowance of Gap workers on the regular payment date, the case held that Article 43(2) of the Labor Standards Act among the applicable provisions of the indictment is erroneous in the misapprehension of legal principles as to Article 43(1) of the Labor Standards Act, and that Article 43(1) of the Labor Standards Act does not constitute a violation of Article 109(1) and Article 43(2) of the Labor Standards Act, although the applicable provisions of the indictment are "Articles 109(1) and 43(2) of the Labor Standards Act", it is obvious that "the defendant did not pay the annual leave allowance of the year 2006, the regular payment date of the annual leave allowance of the defendant", and that Article 43(1) of the Labor Standards Act does not constitute a violation of Article 43(1) of the Labor Standards Act even if the aforementioned provisions were not applied to the defendant's defense right.

[4] A lock-out by an employer under Article 46 of the Trade Union and Labor Relations Adjustment Act may be acknowledged as a legitimate industrial action by the employer, only if there is reasonable nature as a defense means against an industrial action by workers in light of the specific circumstances, such as the employer’s attitude of bargaining and negotiation process, the purpose and method of industrial action by workers, and the degree of shock that the

Meanwhile, the commencement of a lock-out itself can be deemed justifiable in light of the specific circumstances, such as workers’ industrial action. However, in a case where the lock-out continues while maintaining the lock-out while the employer’s intent to stop industrial action after a certain point and practically return to work, and is deemed to have been changed into the nature of an aggressive lock-out with the aim of weakeninging the trade union’s organization actively beyond the defensive purpose of the industrial action by workers, the legitimacy of the subsequent lock-out should be lost.

[5] The legitimacy of an industrial action led by a trade union itself and the legitimacy of an individual act incidental thereto should be distinguished. Thus, even if a certain number of workers commit an act of violence, etc., it does not automatically affect the industrial action as a whole.

1. As to the Prosecutor’s Grounds of Appeal

According to Article 43 of the Labor Standards Act, wages shall be paid in full directly to workers in currency (Paragraph 1), and shall be paid at least once a month on a fixed date (Paragraph 2). In addition, Article 109(1) of the Labor Standards Act provides that an act violating Article 43 of the Labor Standards Act shall be punished.

The legislative purpose of this is to ensure the stability of workers’ livelihood by forcing the employer to pay the full amount of labor to workers on the fixed date of each month, and thus, if the employer fails to pay the full amount of wages at any payment date, the crime of violating each of the above provisions shall be established (see Supreme Court Decision 2002Do4323, Apr. 11, 2003, etc.).

Based on the premise that the facts charged in violation of the Labor Standards Act due to the failure to pay annual leave allowances are prosecuted for violating Articles 109(1) and 43(2) of the Labor Standards Act, the lower court affirmed the first instance judgment that acquitted the Defendant on this part of the facts charged, on the ground that Article 43(2) of the Labor Standards Act is applicable only to the wages that can be paid at least once a month on a fixed date, but the annual leave can be used at any time and thus it is impossible to calculate the amount of allowances due to the failure to use the annual leave allowances on a monthly basis.

However, the above judgment of the court below is hard to accept.

In light of the legislative intent of Article 43 of the Labor Standards Act, even if the annual leave allowance is not regularly paid on the fixed date of each month, and thus, Article 43(2) of the Labor Standards Act cannot be immediately applied, if the employer did not pay the full amount at the due date, it is reasonable to interpret that the crime of violating Articles 109(1) and 43(1) of the Labor Standards Act is established (see Supreme Court Decision 2013Do1959, Nov. 28, 2013).

In addition, according to the records, although the applicable provisions of the indictment concerning this part of the facts charged are "Article 109 (1) and Article 43 (2) of the Labor Standards Act", it is obvious that the defendant did not pay the annual leave allowance for the year 2006 on February 7, 2008, the regular payment date of the annual leave allowance for the year 2006." Thus, the applicable provisions of this part of the facts charged are Article 43 (1) of the Labor Standards Act that "the defendant did not pay the full amount of the annual leave allowance for the year 2006." In conclusion, Article 43 (2) of the Labor Standards Act among the applicable provisions of the indictment stated in the indictment is a clerical error under Article 43 (1) of the Labor Standards Act or mistake in application of law. In full view of the facts and the trial process that the defendant appeared and recognized this part of the facts charged on the second trial date, it is difficult to correct this part of the facts charged, thereby infringing the defendant's right to defense.

Therefore, the lower court should have deliberated and judged whether the facts charged in this part of the facts charged constitute the whole amount of wages falling under Article 43(1) of the Labor Standards Act, and then should have determined whether the Defendant had been guilty by considering whether there was any inevitable circumstance that could not be paid at the due date, even though the best efforts were made for the payment of the total amount of wages, if the unpaid amount of wages is recognized.

Nevertheless, the lower court rendered a not-guilty verdict on this part of the facts charged solely for the reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of violating Articles 109(1) and 43 of the Labor Standards Act, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal

2. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

Examining the evidence duly adopted by the court of first instance, the court below was just in finding the Defendant guilty of violating the Labor Standards Act due to the non-payment of overtime allowances, and there was no error of law by misapprehending the legal principles as to intent to pay wages, contrary to what is alleged in the grounds of

B. Regarding ground of appeal No. 2

Examining the relevant legal principles and the evidence duly admitted, the lower court is justifiable to have found the Defendant guilty of violating the Labor Standards Act pursuant to excess of overtime hours on the grounds as stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles as to

C. As to the grounds of appeal Nos. 3 and 4

A lock-out by an employer under Article 46 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) may be acknowledged as a legitimate industrial action by an employer only when there is reasonable nature as a means of defense against an industrial action by workers in light of the specific circumstances, such as the employer’s attitude of negotiation and negotiation process by the employer and workers, the purpose and method of industrial action by workers, and the degree of shooting received by the employer (see Supreme Court Decision 2003Du1097, Jun. 13, 2003, etc.).

Meanwhile, even though the commencement of a lock-out itself can be deemed justifiable in light of the specific circumstances, such as workers’ industrial action, in cases where the lock-out continues while maintaining a lock-out while maintaining the employer’s continued to return to work after a certain point, and where it can be deemed that the lock-out has been changed to an aggressive nature of a lock-out with the aim of weakeninging the trade union’s organization actively beyond the defensive purpose against the workers’ industrial action, it should be deemed that the subsequent lock-out has lost legitimacy (see Supreme Court Decision 2012Da85335, May 24, 2016, etc.).

Based on its adopted evidence, the lower court determined that ① Nonindicted Company 2 (hereinafter “Nonindicted Company 2”)’s withdrawal of ○○ ○○ ○ ○ ○ ○ ○ Subdivision’s work, and carried out a lock-out for its members on September 21, 2007; ② Nonindicted Company 2’s demonstration or rescue promotion, etc. did not take place after November 29, 207; ③ Nonindicted Company 2 continued to carry out a lock-out on behalf of its members for the following reasons: (i) the Defendant and Nonindicted Company 2’s removal of the lock-out for 50 days from the end of November 207, 207, and (ii) the Defendant’s removal of the lock-out for the purpose of 20 days from the date of 0-out to the date of 8’s withdrawal of her membership’s work; and (iii) the Defendant’s removal of the lock-out for the purpose of 20-out to the end of 30 days from the date of 20-out.

Examining the above legal principles and evidence duly admitted, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the legitimacy of a lock-out and the principle

The Supreme Court precedents cited in the grounds of appeal are different from the case of this case, and it is not appropriate to invoke the case of this case.

D. Regarding ground of appeal No. 5

Inasmuch as the legitimacy of an industrial action led by a trade union itself and the legitimacy of each act incidental thereto should be distinguished, even if certain small number of workers committed an act of violence, etc., it does not automatically constitute an act of violence as a whole (see Supreme Court Decision 2003Du8906, Dec. 26, 2003, etc.).

For the reasons indicated in its holding, the lower court found the Defendant guilty of all the charges of violation of the Trade Union Act, which did not grant annual paid leave in violation of the collective agreement, and the charges of violation of the Labor Standards Act, which did not pay the relevant wage by treating the case as absence of annual paid leave in 2008, as a whole, it is difficult to view that an industrial action led by a subdivision of the Nonindicted Company is lawful and partly unlawful act, such as interference with meetings or damage to property, etc., of which the industrial action was lawfully commenced as a whole. Thus, the period of the industrial action commenced from July 20, 207 and the lawful lock-out period of the Nonindicted Company, which commenced from September 21, 2007, should be excluded from the number of annual fixed working days for calculating the number of annual paid leave days.

In light of the aforementioned legal principles and evidence duly admitted, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the legitimacy of industrial action.

E. Ground of appeal No. 6

According to the reasoning of the lower judgment, the lower court determined that the Defendant’s above act constitutes unfair labor practices of disadvantageous treatment on the ground of trade union activities, and found the Defendant guilty of violating the Trade Union Act, based on the following circumstances in light of the following: (a) the Defendant paid only part of the Defendant’s holiday expenses in 2008 and the holiday bonus in 2008 for its members in proportion to the attendance rate; and (b) the newly employed employees after the lock-out was withdrawn, even if the period of service was not less than four months and the total amount of the bonus was paid.

Examining the relevant legal principles and evidence duly admitted, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

3. Scope of reversal

Of the judgment of the court below, the part not guilty should be reversed on the ground as seen earlier. Since this part and the remaining guilty part are concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence should be imposed on the entire guilty part, the judgment of the court below should be reversed

4. Conclusion

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 Kim Yong-deok (Presiding Justice)