[1] The purport of Articles 43(1) and (2), and 109(1) of the Labor Standards Act, and in cases where an employer fails to pay the full amount of wages at the date of payment of wages, whether the crime of violation of each of the above provisions is established (affirmative)

[2] The principle of interpreting penal provisions

[1] Articles 43(1) and (2), and 109(1) of the Labor Standards Act / [2] Article 12(1) of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act

[1] Supreme Court Decision 85Do1262 Decided October 8, 1985 (Gong1985, 1509), Supreme Court Decision 2002Do4323 Decided April 11, 2003 / [2] Supreme Court Decision 2007Do2162 Decided June 14, 2007 (Gong2007Ha, 1118), Supreme Court Decision 2010Do17153 Decided September 13, 2012 (Gong2012Ha, 1709)

Defendant

Prosecutor

Incheon District Court Decision 2012No2976 Decided January 25, 2013

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Article 43(1) of the Labor Standards Act (hereinafter “Act”) provides that “The wages shall be paid in full to workers in currency directly.” Article 43(2) of the same Act provides that “The wages shall be paid at least once a month on a fixed date.” Furthermore, Article 109(1) of the Act provides that if an employer violates Article 43 of the Act, he/she shall be punished by imprisonment for not more than three years or by a fine not exceeding twenty million won. This provision aims to ensure the stability of workers’ livelihood by forcing the employer to pay the full amount of the wages to workers on the fixed date each month, and thus, if an employer fails to pay the full amount of wages at the due date of payment of wages, the crime of violating each of the above provisions is established (see Supreme Court Decision 2002Do4323, Apr. 11, 2003, etc.).

2. Comprehensively taking account of the adopted evidence, the lower court acknowledged the fact that the date of the instant workers’ regular payment of wages (including overtime allowances) was the 25th day of each month and the 10th day of each month even number of months, but the Defendant’s regular bonus was to be paid to his employees on February 2012 and the 0th day of January 25, 2012, which was the date of the regular payment of wages, and the 0th day of February 27, 2012, which was the date of the said regular payment, paid the overtime allowance and the 0th day of February 2012. On the other hand, Article 43(1) of the Act punishing a violation of the total payment principle of wages, while Article 43(2) of the Act constitutes a violation of the principle of no punishment without law, which is contrary to the purport of Article 43(2) of the Act, and thus, constitutes a violation of Article 43(1) of the Criminal Act or a violation of the principle of no punishment without law.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the records, the facts charged in this case indicate that the employer, as the employer, did not directly pay overtime allowances for January 2012 and regular bonuses for February 2012 in currency, and does not specify the date of payment of wages. However, the applicable provisions of this case stated in the indictment in this case are stated as "Articles 109(1) and 43 of the Labor Standards Act". The defendant appeared on the first day of the first instance trial and stated that all the facts charged in this case are recognized. The first instance court found the defendant guilty of all the facts charged in this case by comprehensively taking into account the adopted evidences, and found the defendant guilty of both the facts charged in this case, stating Articles 109(1) and 43 of the Act as applicable provisions for criminal facts, and then suspended the sentence against the defendant. The defendant appealed only for the reasons for appeal that the defendant did not have a duty to pay overtime allowances, and the court below rejected the judgment of the first instance court that found the defendant not guilty on the second day of two-year bonus payment at the latest."

B. First, among the facts charged in the instant case, the part pertaining to the payment of overtime allowances in January 2012 is a case where the employer has not paid the full amount of wages to be paid on a certain date at least once a month, and thus, Articles 109(1), 43(1), and 43(2) of the Act are all applicable, but only one crime is established.

Meanwhile, even if the regular bonus of this case is paid regularly and regularly every two months each month, and it cannot be immediately applied under Article 43(2) of the Act premised on the obligation to pay a certain date at least once a month, if an employer did not pay the total amount at the due date in light of the legislative purport of the above provision, etc., it is reasonable to interpret that the crime of violation of Articles 109(1) and 43(1) of the Act is established. Penal provisions should be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, the method of systematic and logical interpretation that clearly expresses the logical meaning of the provision within the meaning of the language and text that takes into account the legislative purpose and purpose of the provision in question is for the interpretation of the provision in question, and is in accordance with the principle of no punishment without law (see, e.g., Supreme Court Decisions 207Do2162, Jun. 14, 2007; 2013Do1313).

In addition, Article 43 of the Act is comprehensively stated in the applicable provisions of the indictment in this case, and the fact that the defendant paid all overtime allowances and the regular bonus in February 2012 at a later time than the due date is also recognized by the court below. In addition, in light of the content of the defendant's argument from the first instance to the closing of argument in the court below and the whole process of the trial, it is difficult to view that the facts charged in this case contain all acts violating Article 43 (1) and (2) of the Act, thereby infringing the defendant's right to defense.

Therefore, the court below should have deliberated and judged whether the facts charged in this case include all violations of Article 43(1) and (2) of the Act, and if such unpaid facts are recognized, the court below should have determined the defendant's guilt or innocence by first considering whether the employer has any ground for dispute as to the existence and scope of the obligation to pay wages, whether the employer has the best efforts to pay the total amount within the due date, but there is any inevitable circumstance that could not be paid within the due date.

C. Nevertheless, the lower court concluded that the instant facts charged constitute a crime of violating Article 43(1) of the Act, on the grounds stated in its reasoning, such as that the employer’s payment of wages in full and late payment is not possible, and thus, acquitted the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of violating Articles 109 and 43 of the Act due to the payment of wages, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, 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 Shin (Presiding Justice)