Defendant

Egypt

Attorney Lee Jin-ok

A defendant shall be punished by a fine of 500,000 won.

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.

The provisional payment of the amount equivalent to the above fine shall be ordered.

The Defendant is an employer who runs the “Songdo Branch” route in Yeonsu-gu Incheon Metropolitan City (number omitted) and ordinarily employs 45 workers and operates transportation business. From October 4, 2003 to September 14, 2008, Nonindicted 2’s retirement allowance of KRW 1,620,484 was not paid within 14 days from the date of retirement, which is the date of the occurrence of the cause for payment, without any agreement between the parties on the extension of the due date.

1. Each legal statement of the witness Nonindicted 2, 3, and 4

1. The statement in the second written petition filed by Nonindicted 3

1. Entry of report on results of internal investigation into a petition case prepared by a special judicial police officer;

1. Article applicable to criminal facts;

Articles 109(1) and 36 (Selection of Punishment of Fines)

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. Claims on interim settlement of retirement allowances;

A. Summary of the assertion

Nonindicted 2 entered into an employment contract with the Defendant for a fixed term of one year or one year and six months each year. At each time the employment contract is terminated, Nonindicted 2 voluntarily submitted retirement allowances and received interim settlement of the retirement allowances. As such, the Defendant does not have a retirement allowance to be paid to Nonindicted 2, and accordingly, the Defendant should be acquitted.

B. Determination

Article 34 of the Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) provides that "the retirement benefit system that an employer pays to a retired employee shall be governed by the Act on the Guarantee of Workers' Retirement Benefits." Thus, the validity of interim settlement of accounts of retirement benefits shall be governed by the corresponding provisions of the Act on the Guarantee of Workers' Retirement Benefits. Article 8 (2) of the Act on the Guarantee of Workers' Retirement Benefits provides that "Notwithstanding the provisions of paragraph (1), an employer may, upon a request of an employee, settle and pay a retirement allowance for the period in which the employee continued to work before his/her retirement." In this case, the period of continuous employment for the calculation of the retirement allowance after the advance settlement of accounts is newly calculated from the time of the settlement of accounts. The "worker's demand", which is a requirement for the validity of interim settlement of accounts, should be an affirmative and implicit method, not just because it is included in the annual salary contract or it does not receive an objection in the name of the employee's retirement allowance.

In the instant case, according to the aforementioned evidence, it can be acknowledged that Nonindicted Party 2 received from the Defendant a retirement allowance of 5,578,260 won for the period of service from October 4, 2003 to October 4, 2004, as retirement allowance of 1,164,130 won for the period of service from October 4, 2004 to October 3, 2005, as retirement allowance of 2,057,350 won for the period of service from October 4, 2005 to February 28, 207, as retirement allowance of 1,636,956,686,686, and 96 won for the period of service from March 1, 207 to February 29, 2008.

However, in this case, there is no evidence to acknowledge that Nonindicted 2 actively and clearly demanded the Defendant to pay the interim retirement pay (in accordance with the statement of calculation of retirement pay or the receipt certificate submitted by his counsel, it cannot be recognized that there was any agreement on the "interim settlement" between Nonindicted 2 and the Defendant. Furthermore, according to the above witness's statement, Nonindicted 2 received retirement pay paid by the company without any particular objection, and in case of delayed payment of retirement pay, there was a case where Nonindicted 2 received the retirement allowance paid by the company without any specific objection, and urged the company to pay it. However, it is difficult to deem that Nonindicted 2 demanded the company to pay the "interim settlement" of retirement pay by the above recognition alone, and rather, it is difficult to say that Nonindicted 2 demanded the payment of retirement allowance paid by the time of retirement stipulated in the previous employment contract, and it is difficult to view that Nonindicted 2 actively demanded the payment of retirement allowance by the method of interim settlement). The above amount paid to Nonindicted 2 as the above interim settlement is invalid.

Therefore, the above assertion by the defense counsel that the retirement allowance incurred to Nonindicted 2 was paid through the interim settlement of accounts cannot be accepted.

2. The assertion that there were special circumstances

The Defendant paid the retirement allowance to Nonindicted 2 in the form of interim settlement, and there is a position in which only the retirement allowance can not be separately handled in the situation where Nonindicted 2 received the annual and monthly allowance from Nonindicted 2 along with the retirement allowance. Therefore, this constitutes a case where there is any ground for dispute as to the existence and scope of the obligation to pay the wages. Therefore, there was no intention on the Defendant to “violation of the obligation to pay the wages, etc. within the fixed date” as prescribed

B. Determination

However, in a case where an employer refuses to pay a retirement allowance to a retired employee on the ground of an agreement that he/she shall include a retirement allowance in the monthly salary or daily allowance for each month without any legal effect, it cannot be deemed that there is a reasonable ground for dispute as to the existence of the obligation to pay a retirement allowance and that there is a considerable reason for the employer to pay the retirement allowance (see Supreme Court Decision 2007Do4171, Aug. 23, 2007);

In the instant case, as seen earlier, the amount already paid by the Defendant to Nonindicted 2 has no validity as an interim settlement, so it cannot be deemed that there are reasonable grounds for the Defendant to refuse the payment of retirement allowances. Therefore, there is no intention on the Defendant to commit a crime of violating the duty to pay wages within the due date under Articles 112 and 36 of the Labor Standards Act. Furthermore, there is no special circumstance to deem that the Defendant was unable to pay retirement allowances and annual or monthly allowances separately to Nonindicted 2.

Therefore, the defense counsel's above assertion is not accepted.

Judges Kim Jong-hun