[1] The meaning of "employer" under Article 15 of the Labor Standards Act

[2] The case holding that a person who performs the duties of the representative shall be deemed an employer under the Labor Standards Act by taking charge of the company's emergency response committee representative in a critical situation

[1] Articles 112 and 36 of the Labor Standards Act are employers. Article 15 of the Labor Standards Act provides that the term "employer" refers to a business owner, a person in charge of business management, or any other person who acts on behalf of a business owner with respect to matters relating to workers. Here, the term "person who acts on behalf of a business owner with respect to matters relating to workers" refers to a person who is responsible for general business management and represents or acts on behalf of a business owner with comprehensive delegation of all or part of business management from the business owner. The term "person who acts on behalf of a business owner with respect to matters relating to workers" refers to a person who is given specific authority and responsibility from the business owner with respect to matters such as determination of working conditions, such as personnel, wages, welfare, labor management, etc.

[2] The case holding that if a company's emergency response committee representative in a critical situation takes charge of the company's overall business activities and performs the duties of the representative, the above representative shall be deemed an employer as a person who acts on behalf of the employer for the company's overall business activities

[1] Articles 15, 36, and 112 of the Labor Standards Act / [2] Articles 15, 36, and 112 of the Labor Standards Act

[1] Supreme Court Decision 2005Do8364 decided May 11, 2006 (Gong2006Sang, 1092)

Defendant

Maximumia

Attorney Yoon Yoon-soo

The defendant shall be innocent.

1. Summary of the facts charged

The Defendant, as the employer of Nonindicted Co. 1, Ltd. 459 in the Hanju-si, the Defendant, at his workplace from January 27, 1999 to August 30, 2006, did not pay the total of Nonindicted 2’s wages of KRW 6,100,000, and the total of Nonindicted 3’s wages from August 18, 2005 to August 30, 2006, to KRW 5,200,000 from the date of the retirement without any agreement on the extension of the due date between the parties concerned.

2. Facts of recognition;

The following facts are acknowledged according to evidence.

A. Nonindicted Co. 1 is a company with the purpose of real estate rental, real estate sales, etc. The purpose of Nonindicted Co. 1 is to build and sell the main department store in 459, Young-dong, Young-dong, Chang-dong, but the Nonindicted Co. 1 promoted a business to build and sell the main department store in order to cause financial pressure and cumulative financial difficulties. On June 3, 2004, Nonindicted Co. 4 was used for cerebrovascular and caused an emergency situation in which consciousness was unknown.

B. The Defendant, who was a former director of Nonindicted Co. 1, was in a crisis, entrusted the representative of Nonindicted Co. 1’s Emergency Countermeasures Committee.

C. Around July 24, 2004, for the purpose of the liquidation of claims against Nonindicted Co. 1, a claim-based temporary countermeasure committee consisting of the buyer of the prime department store, the creditors of Nonindicted Co. 1, etc., was organized. The creditors’ temporary countermeasure committee and the emergency countermeasure committee of Nonindicted Co. 1 organized the obligation and obligation by selling the prime department store after completion of construction and redeeming the claims of Nonindicted Co. 1, and for this purpose, the claim-based temporary countermeasure committee reached an agreement on the execution of business using 0.5% of the claim amount as operating expenses by paying to the emergency countermeasure committee.

D. After that, the employee benefits of Nonindicted Company 1 were appropriated from the operating expenses paid by the temporary countermeasures committee for the claim group or the funds personally raised by the Defendant, etc. However, due to a large number of deficiencies, Nonindicted Company 2 and 3 were not paid as indicated in the facts charged.

3. Determination

A. Articles 112 and 36 of the Labor Standards Act are employers. Article 15 of the Labor Standards Act provides that the term “employer” refers to a business owner, a person in charge of business management, or any other person who acts on behalf of a business owner with respect to matters relating to workers. Here, the term “person who acts on behalf of a business owner with respect to other matters relating to workers” refers to a person who is responsible for general business management and represents or represents the whole or a part of the business and is delegated by the business owner, and “a person who acts on behalf of a business owner with respect to other matters relating to workers” refers to a person who is granted certain authority and responsibility from the business owner with respect to matters such as determination of working conditions, such as personnel, wages, welfare, labor management, etc., or orders, direction, and supervision over the business (see Supreme Court Decision 2005Do8364, May 11, 2006)

The Defendant did not receive explicit delegation of management or certain authority and responsibility from the representative director of Nonindicted Co. 1. The Emergency Countermeasure Committee is not a regular organization or permanent organization of Nonindicted Co. 1. However, as long as the Defendant was in charge of the overall business of Nonindicted Co. 1 and performed the duties of the representative while taking charge of the affairs of Nonindicted Co. 1 by taking charge of the representative of Nonindicted Co. 1’s emergency Countermeasure Committee, the Defendant is a person who acts on behalf of the employer

B. However, the crime of violating the obligation to pay wages and retirement allowances under Articles 112 and 36 of the Labor Standards Act is exempted in cases where an employer has made his best efforts to pay them. However, in cases where an inevitable circumstance, which was unable to pay them within the due date due to financial circumstances due to business depression, etc., is acknowledged in light of social norms (see Supreme Court Decision 2005Do9230, Feb. 9, 2006, etc.).

In order to liquidate the claims and obligations with creditors, the ordinary business was suspended, and the temporary emergency response committee was formed, and there was no particular income source in the company itself, and employee expenses were paid out of the temporary countermeasure committee for claims, even if there was no other income source, while there was no evidence as to the business relationship or profit-making structure of the non-indicted 1 corporation, which is contrary or opposed to this, the defendant made his best effort to pay employee's benefits, but there was an inevitable circumstance that could not be paid within the due date

C. All the facts charged in the instant case do not constitute a crime. In accordance with the former part of Article 325 of the Criminal Procedure Act, innocence shall be pronounced.

Judges Juk-man