Defendant

Delay Kim

Attorney Yellow-woon

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The Defendant is an employer who runs a medical business by employing 1,100 full-time workers as the president of the Dong National University and Medical Center located in 1090-1, 100, who is a racing-si.

1. The employer shall pay wages on a given date not less than once a month, despite the fact that he has paid them on a given date.

As stated in the “detailed statement of delayed payment of wages” in the attached Form 12,67,67,675 won for January 205, and total of KRW 12,577,8,087 for February 12, 2005, and KRW 37,238,087 for 101 employees, etc. of the Port Hospital affiliated with the above Medical Center, including Nonindicted 9, etc., 16,638,180 won for January 200, as indicated in the “detailed statement of delayed payment of wages” for Nonindicted 8, etc.

2. Although the collective agreement concluded between the labor and management of the above medical center explicitly states that “the hours of recess shall be from 12:30 p.m. to 30 p.m.,” the collective agreement on the said hours of recess was violated by changing the hours of recess to 20 members of the labor union as stated in the attached Form 10, such as Nonindicted 10, etc., of the labor union members affiliated with the above medical center from February 28, 2005 to March 25, 2005, including Nonindicted 10, etc., of the labor union members affiliated with the above medical center for the hours of recess hours from 12:0 p.m. to 20 p.m., one hour each time within the same time.

1. Defendant's legal statement;

1. Each police statement (non-indicted 1, 2, 3, 4, 5, 6);

1. Articles of association, organization regulations, division of duties, rules on delegation of authority, and rules on employment of the school juristic person or college;

1. Collective agreement;

1. Article applicable to criminal facts;

Articles 112(1) and 42 of the Labor Standards Act, Article 92 subparag. 1(b) and Article 31(1) of the Labor Union and Labor Relations Adjustment Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Whether the defendant is the employer;

A. Defendant’s assertion

The defendant asserts that it is unfair to punish the defendant as an employer under the Labor Standards Act, since the whole operation of the affiliated hospital under the above medical center is not the director of the medical center, but the head of each hospital independently.

B. Concept of employer

The Labor Standards Act stipulates that “employer” as the subject of compliance with the obligations prescribed by the Act refers to an employer, or a person in charge of business management, or any other person who acts on behalf of an employer with respect to matters relating to workers. Here, “person in charge of business management” refers to a person in charge of general business management, who represents or acts on behalf of an employer with comprehensive delegation from an employer for all or part of business management. Specifically, whether a person is an employer in a labor relationship with a worker shall be determined depending on whether the person has the authority to perform legal obligations arising from labor relations with the worker and is recognized as the subject of external responsibility for nonperformance, and whether the person actually exercises such authority is not an issue. In addition, in cases where an employer is a juristic person, etc., the fact that a business owner has the authority to perform such duties and authority overlapping or divided, the person in charge of business management shall be held liable for the difference between the person who actually performs the duties and the person who actually performs such duties, in light of the purport of the Labor Standards Act by expanding the concept of employer.

C. In the instant case:

In the instant case, according to the above evidence, most of the matters concerning the operation of each hospital under the above medical center are recognized as having been determined and executed by its own authority, but the head of the medical center has the authority to manage and operate the medical center under the order of the president of the school juristic person and to coordinate the operation of the affiliated hospital. Accordingly, the head of the medical center has the authority to execute the budget including matters concerning the payment of wages, such as approval for the transaction of funds, if necessary by ascertaining the demand for the personnel expenses of each hospital, and can be recognized as having the authority to conclude a collective agreement on the working conditions applicable to each hospital under the medical center as a representative in the course of collective bargaining with the labor union. Thus, the Defendant is recognized as having the legal obligation as an employer in relation to the employees working at the affiliated hospital under his/her control as a business manager representing the above medical center.

2. Whether the collective agreement is violated;

Although the Defendant acknowledged the fact that the above racing hospital operated recess hours, unlike the rest time hours stipulated in the collective agreement, it is for the hospital users to provide convenience to the hospital, thereby improving the management conditions of the hospital, and it is not for the actual aggravation of the working conditions of the workers, it is reasonable to punish the hospital under the law. However, it is found unfair to punish the Defendant. However, it is recognized that the business hours of the hospital increase due to changes in the rest time, such as criminal facts, and accordingly, there is no choice but to increase the business volume, such as leaving the rest time to the employees who use the rest time in the remaining working hours except the rest time used by the individual workers, and this result goes against the collective agreement as it substantially worsens the working conditions of the workers specified in the collective agreement. In addition, considering the management status of the above medical center or hospital difficult, it is difficult to recognize that there exists a justifiable ground to the extent that the Defendant would be exempted

[Attachment Omission]

Judges Shin Jae-ok