Defendant

Defendant

Power of Demotion

Law Firm Busan, Attorneys Yoon-man et al.

Ulsan District Court Decision 2005Ma1231 Decided November 1, 2005

The judgment of the court below is reversed.

The defendant shall be innocent.

Grounds for Appeal and Determination

1. Summary of grounds for appeal;

In around 1984, the defendant was employed as a production worker in Hyundai Heavy Industries Co., Ltd. and was working as a vice-chairperson of the Dong-gu Regional Committee of the Democratic Labor Party at present. Nonindicted 1, who requested the above defendant to make a recommendation for membership in the Hyundai Heavy Industries, is the defendant's friendship. The defendant is the defendant's friendship with the children of Nonindicted 1, and Nonindicted 3, who requested the recommendation of the defendant, is in a friendship relationship with the defendant's wife. At the time of this case, the non-regular worker was actively present at the above meeting and actively attended the countermeasures. For this reason, the fact that the location of the labor union member, such as the defendant's intensive report of the labor union in the press, etc., and the defendant's labor union member's history as the labor union member at the time of employment in Hyundai Heavy Industries, and the human composition of the persons related to this case, and the judgment of the court below erred in the misapprehension of legal principles as to the facts charged, which affected the defendant's employment or acceptance of money and valuables.

2. Determination on the grounds for appeal

A. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged is as follows: "The defendant is employed by the head of the labor union policy office and representatives (five lines) while working at the Construction Equipment Industry Department in the Construction Equipment Industry Department in 1984, and is currently working as the vice-chairperson of the Dong-gu Regional Committee of the Democratic Labor Party. On February 2, 2004, at the Ulsan National University Hospital in Ulsan-gu, Ulsan National University Hospital in 290-3, the defendant was convicted of the facts charged by the court below on the ground that "(ju) upon the request of the non-indicted 1, the defendant, who is the defendant's wife, the South of the defendant, who was the head of the labor union secretariat in 1984, recommended the above sulfur compensation from the defendant's South Korea, who was the defendant's wife in the Construction Equipment Department, and the defendant's employment compensation from the non-indicted 31,000 won under the name of the defendant's employment compensation from the non-indicted 24:00 of the same year."

B. Determination of party members

As stated in the facts charged in the instant case, Article 8 of the Labor Standards Act provides that “No person shall intervene in the employment of another person or gain profits as an intermediary, unless otherwise provided for by the Act.” Article 110 of the same Act provides that a person who violates the above Article 8 shall be punished. The Labor Standards Act provides for the standard of working conditions, thereby guaranteeing and improving the basic livelihood of workers and promoting balanced development of the national economy, such as compliance with the working conditions under the Labor Standards Act, equal treatment, prohibition of forced labor, prohibition of violence, guarantee of public rights, etc., as well as referral fees, brokerage fees, etc. in order to prevent the acquisition of part of wages by taking advantage of the status of a broker, supervisor, etc. after employment, and thus, in order to punish the above provision, it shall be deemed that he/she has participated in the employment of another person or obtained profits as an intermediary for profit-making purposes, and thus, he/she shall be deemed to have received economic benefits from the latter part of the Labor Standards Act and shall be deemed to have obtained economic benefits from the latter part of the Labor Standards Act.”

In addition, in determining the above-for-profit nature, there is no need to be a positive or conclusive perception about it, and there is insufficient perception about it. However, whether there was such a profit-making nature should be reasonably determined in light of social norms by comprehensively taking into account various circumstances, such as the social status of the defendant, personal relationship between the defendant and the other party to the act, motive and circumstance of the act involved in employment of others, method and method of the act, contents and form of the act, nature and scope of the other party to the act, social situation at the time of the act,

위와 같은 법리에 비추어 이 사건을 살피건대, 기록에 의하여 인정되는 다음과 같은 사정, 특히 ① 피고인이 지금까지 노조활동과 관련해서는 여러 차례 형사처벌을 받았으나, 노조간부의 지위나 노조활동가의 지위를 이용하여 금품을 수수하거나 회사의 편의를 제공받거나 금품을 제공받는 등의 도덕적으로 비난받을 행동을 한 사정은 찾아 볼 수 없는 점, ② 피고인은 부모님이 돌아가신 후 맏형인 공소외 1이 아버지로서의 역할을 하여왔고 피고인이 결혼을 할 때에도 공소외 1로부터 금적적인 도움을 받았으며, 공소외 1이 이 사건에서 건넨 300만 원도 당시 피고인이 금전적으로 어려움을 겪고 있어 이를 도와준 측면이 있는데다가, 현대자동차에서 노조간부의 취업비리가 문제된 사안의 대부분 노조간부가 불특정 다수로부터 취업의 대가로 고액의 금원을 교부받은 것과는 그 성격을 달리하는 점, ③ 피고인이 이 사건에서 300만 원을 건네받은 동기나 경위, 그 수단과 방법에 있어서도, 피고인이 공소외 1로부터 입사추천을 부탁받고 이를 공소외 3에게 전하는 과정에서 그 취업의 대가로 돈을 지급받기로 약속하거나 이를 요구하였다고 볼 만한 증거가 없고 그러한 정황도 보이지 아니하며, 가까운 친인척간에 취업에 관한 도움을 부탁하는 것은 우리사회에서 통상 있는 일인데 그에 대하여 대가를 바라거나 경제적 이익을 얻고자 의도하였다는 것은 오히려 이례적인 점 등을 종합해보면, 피고인이 이 사건 공소외 2의 입사추천과 관련하여 단순히 돈을 건네받았다는 것만으로 그것이 ‘영리로’ 한 것이라고 볼 수는 없다고 할 것이다.

Therefore, it is insufficient to recognize the facts charged in this case that the defendant, the investigation agency of the defendant, the defendant 1, the defendant's statement in the court below, the statement of the non-indicted 2, and the non-indicted 1 Agricultural Cooperative account confirmation report alone are sufficient to acknowledge the facts charged in this case that "the defendant involved in the employment of another person or obtained profits as an intermediary", and there is no other evidence to acknowledge it. Thus, although the facts charged in this case should be acquitted under the latter part of Article 325 of the Criminal Procedure Act because the facts charged in this case are when there is no proof of facts charged, the court below found the defendant guilty. In this regard, the court below

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged of this case against the defendant are as seen above, and this constitutes a case where there is no proof of facts constituting a crime on the grounds as seen above, and thus, it is decided as per Disposition by the decision of not guilty against the defendant under the latter part of Article 325 of the

Judges Kim Jong-cheon (Presiding Judge)