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

[2] The case holding that where a corporate director resigns from office as the representative director on the corporate register but actually has been operating the company as the president, it constitutes an "employer" under the former Labor Standards Act

[3] The grounds for rejecting the responsibility for the violation of Article 36 (2) of the former Labor Standards Act

[4] The meaning of an employee under the Labor Standards Act and whether a director of the company constitutes an employee (affirmative)

[1] The term "employer" under Article 15 of the former Labor Standards Act (amended by Act No. 5309 of Mar. 13, 1997) means 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, a person in charge of business management refers to a person who is responsible for general business management and is delegated by the business owner with a comprehensive delegation of all or part of the business management and represents or represents the business externally. Since the former Labor Standards Act does not limit the employer as a person in charge of duty to comply with the provisions of the same Act and expands the reason to expand as a person in charge of business management, etc. to ensure the effectiveness of each provision of the Labor Standards Act in the labor site, the person in charge of business management shall, in principle, be a person in charge of general business management and is granted the authority and responsibility to implement each provision of the Labor Standards Act systematically under related Acts and subordinate statutes, it shall not necessarily be exercised.

[2] The case holding that a person who has resigned from the office of representative director on the corporate register but actually has been operating the company as the chairperson is an employer under the former Labor Standards Act.

[3] The Labor Standards Act does not allow the employer to pay wages on the sole ground that the company is in economic depression. However, in such a case, if the employer was unable to prevent the overdue or overdue payment of wages even if the employer had made every gender and efforts, and there is an inevitable circumstance that makes it impossible for the employer to expect more lawful acts, such circumstance constitutes a ground for dismissal of liability for a violation of Article 36(2) of the same Act.

[4] An employee subject to the Labor Standards Act refers to a person who provides an employer with labor in return for payment of labor. Thus, if a director, etc. of a company takes charge of certain labor under the direction and supervision of the president, etc. in addition to handling affairs delegated by the company, and has received certain remuneration in return, it may be deemed that the employee is a worker under the Labor Standards Act. Therefore, it cannot be readily concluded that

[1] Article 15 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 15 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [3] Articles 36 (2) and 109 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [4] Article 14 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

[1] Supreme Court Decision 88Do1162 delivered on November 22, 198 (Gong1989, 38), Supreme Court Decision 94Do2694 delivered on June 13, 1995 (Gong1995Ha, 2427) Supreme Court Decision 95Do2151 delivered on December 5, 1995 (Gong1996Sang, 319) / [2] Supreme Court Decision 87Do2129 delivered on April 25, 198 / [3] Supreme Court Decision 87Do2509 delivered on February 9, 198 (Gong198, 547), Supreme Court Decision 93Do2909 delivered on March 25, 1994 (Gong198, 1947) and Supreme Court Decision 93Do2903 delivered on March 29, 194)

Defendant 1 and three others

Prosecutor and Defendant

Attorney Song-gu et al.

Seoul District Court Decision 96No4161 delivered on February 25, 1997

Of the judgment below, the part on Defendant 2, Defendant 3, and Defendant 4 is reversed and remanded to the Panel Division of the Seoul District Court. Defendant 1’s appeal is dismissed.

1. We examine the prosecutor’s grounds of appeal.

According to the reasoning of the judgment below, the non-indicted 1 corporation was established by the defendant 1 for the purpose of the above construction-related technical service business on March 29, 197, and the defendant 1 was registered as the representative director of the above company on July 192. Although the above company had completed the registration of resignation on June 3, 195, the above company was operated directly by the chairperson of the above company until June 21, 1995. The above company was not a construction-related headquarters, supervision-related headquarters, road, bridge, etc.'s construction-related business's construction-related business's construction-related business's construction-related business's construction-related business's construction-related business's construction-related business's construction-related business's construction-related business's construction-related business's management-related business's construction-related business's management-related business's management-related business's construction-related business's representative director's management-related business's construction-related business's management-related business's appointment of the defendant 3.

In light of the records, the fact-finding of the court below is proper, and there is no error in the misconception of facts or incomplete deliberation due to the violation of the rules of evidence, such as the assertion of litigation.

However, under Article 15 of the former Labor Standards Act, the term "employer" means an employer, a person in charge of business management, or a person who acts on behalf of an employer with respect to matters concerning workers. Here, a person in charge of business management refers to a person who is responsible for general business management and represents or represents external business with comprehensive delegation from an employer for all or part of business management (see Supreme Court Decision 88Do1162, Nov. 22, 198). Since the former Labor Standards Act does not limit the employer as a person in charge of obligation to observe the provisions of the same Act, but does not limit the employer to the employer as a person in charge of business management, etc. and expands the reason to expand as a person in charge of business management, etc. to ensure the effectiveness of each provision of the Labor Standards Act in the labor site, the person in charge of business management, as a matter of principle, is granted the authority and responsibility to implement each provision of the Labor Standards Act in an institutional manner under the relevant Acts and subordinate statutes, it does not necessarily have to exercise such authority.

However, Articles 389(1) and (3) and 209 of the Commercial Act provide that the representative director of a stock company shall represent the company, and shall have the authority to conduct all judicial or extra-judicial acts concerning the business of the company, and the representative director shall represent the company and preside over the business of the company. As such, Defendant 2, Defendant 3, and Defendant 4 shall be appointed as the representative director of the above company and provided that they shall have the authority and responsibility to implement each provision of the Labor Standards Act systematically. Although the payment of wages, etc. to workers was excluded from the payment of wages, etc. by Defendant 1, as stated in the judgment of the court below, it cannot be said that the power and responsibility for the payment of wages, etc. granted by the above company, which is the business owner, was extinguished, and therefore, Defendant 2, Defendant 3, and Defendant 4 shall be the employer who shall be liable

Ultimately, the court below erred by misapprehending the legal principles on employers under the Labor Standards Act, thereby adversely affecting the judgment. Therefore, the appeal pointing this out has a ground for appeal.

2. Defendant 1’s ground of appeal is examined.

According to the court below's duly confirmed, defendant 1, as a private owner of the non-indicted 1 corporation, has retired from the office of representative director and director of the company, but actually has been directly managing the company as the chairperson. The order of service, fund management, wage payment for workers, etc. is matters under the jurisdiction of defendant 1 and the representative director in charge of management, and the appointment of employees, promotion of salary, calculation of salary, and approval of defendant 1, who is the chairperson. Thus, defendant 1 shall be deemed to fall under the employer under Article 15 of the former Labor Standards Act (see Supreme Court Decision 87Do2129, Apr. 25, 1989).

However, if an employer has made best efforts to pay wages, retirement allowances, etc. but it is deemed that inevitable circumstances exist that make it impossible to pay wages, retirement allowances, etc. due to financial difficulties caused by business failure, etc., he/she cannot be held liable for the crime of delinquency in payment of wages, etc. However, according to the records, it cannot be viewed that Defendant 1 could not prevent the delay in payment of wages, etc. due to his/her full gender and efforts over the period before and after the company’s default. Thus, it cannot be viewed that there was any inevitable circumstance that the above Defendant could not

In addition, an employee subject to the Labor Standards Act refers to a person who provides an employer with labor in return for payment of labor. Thus, if a director, etc. of a company takes charge of certain labor under the direction and supervision of the president, etc. in addition to handling affairs delegated by the company, and has received certain remuneration in return, it shall be deemed an employee under the Labor Standards Act (see Supreme Court Decisions 91Nu11490 delivered on May 12, 192, 92; 92Da923 delivered on August 24, 1993), it shall not be readily concluded that he is not an employee solely on the ground that he was in the director of the company.

Therefore, in light of the records, the first instance court's lawfully examined and adopted evidence, and recognized the fact that Defendant 1, the actual manager of Nonindicted Company 1, did not pay wages, bonuses, retirement allowances, etc. to its employees as stated in its reasoning, and it is just to find the defendant guilty by applying Articles 109, 30, and 36 of the Labor Standards Act to the above defendant's act, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.

As long as the argument of legal principles that points out the theory of lawsuit is without merit, there is no error of law such as misunderstanding of legal principles as to the ground for ex officio judgment, incomplete hearing, or omission of judgment, since the court below did not make ex officio judgment. All arguments are without merit.

3. Therefore, the part concerning Defendants 2, 3, and 4 in the judgment of the court below is reversed, and that part of the case is remanded to the court below. Defendant 1’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Im-soo (Presiding Justice)