In other words, the court below decided as follows with respect to the proviso of Article 38 of the Labor Standards Act. In other words, it is originally decided as follows: the Labor Relations Commission's disposition to reject the approval or application for approval on temporary closure upon the employer's application pursuant to the proviso of Article 38 of the Labor Standards Act, which is originally established in order to prevent the employer from refusing the payment of wages due to temporary closure of business on the ground that the employer has inevitable reasons for temporary closure, and the above approval of the Labor Relations Commission is not exempted from the obligation to pay temporary closure allowances actually occurred pursuant to the Labor Standards Act;

It is decided to the purport that the interpretation that the party’s obligation to pay does not naturally arise under the substantive law is reasonable in light of the purport of the law. Therefore, the Defendant’s disposition that approved the temporary closure of the Regional Labor Relations Commission or cancelled its approval cannot be said to be an administrative disposition that is the object of administrative litigation with the effect of changing the right to the Plaintiff.

However, according to the provision of Article 38 of the Labor Standards Act, if a business shuts down due to a cause attributable to the employer, the employer shall pay the worker allowances of not less than 60/100 of average wages during the period of the business shuts down: Provided, That this shall not apply in cases where the Labor Relations Commission's approval is obtained because it is impossible to continue the business due to unavoidable cause, or where the employer intends to not pay the said allowances during the period of the business shuts down, it shall be deemed that the continuation of the business is impossible due to unavoidable cause, and that the employer shall obtain approval from the Labor Relations Commission on this point. Therefore, the above two requirements shall be met if the employer remains in a good condition even during the period of the business shuts down.

Even though it is impossible to continue business due to an objective reason, if the Labor Relations Commission fails to obtain the approval, the payment of the allowance may not be exempted. As such, the existence of the approval of the Labor Relations Commission directly affects the existence of the claim for payment of allowances between the parties concerned, it is reasonable to regard the approval of the above district Labor Relations Commission as an administrative disposition (see Supreme Court Decision 63Da540, Dec. 12, 1963). Accordingly, the original judgment should have erred by misapprehending the legal principles on Article 38 of the Labor Standards Act.

Accordingly, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court which is the court below.

The judges of the Supreme Court (Presiding Judge) of the Red Net Sheet