The meaning of “retirement” under Article 9 of the Guarantee of Workers’ Retirement Benefits Act and Article 36 of the Labor Standards Act (i.e., lawful termination of employment relations)

Articles 9 and 44 subparag. 1 of the Guarantee of Workers' Retirement Benefits Act, Articles 36 and 109(1) of the Labor Standards Act

Supreme Court Decision 2009Do7908 Decided November 12, 2009 (Gong2009Ha, 2118)

Defendant

Defendant

Suwon District Court Decision 2014No6090 decided September 11, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

Judgment ex officio is made.

1. The interpretation of a penal provision shall be strict, and the interpretation of a penal provision shall not be permitted because it is against the principle of no punishment without the law to excessively expand or analogically interpret the meaning of a penal provision against the defendant.

The crime of violating Articles 44 subparag. 1 and 9 of the Guarantee of Workers’ Retirement Benefits Act (hereinafter “Retirement Benefits Act”) is established when an employee retires from office, the crime of violating Articles 109(1) and 36 of the Labor Standards Act is established when the employee dies or retires, and the employee does not pay all money and valuables, such as wages, etc. within 14 days from the date on which the cause for the payment occurred. In this case, “retirement” of an employee under Article 9 of the Retirement Benefits Act and Article 36 of the Labor Standards Act refers to the lawful termination of labor relations. Thus, where an employment contract remains in force and the employer does not have the employer’s obligation to pay retirement allowances or to liquidate money and valuables, each crime should not be established (see Supreme Court Decision 2009Do7908, Nov. 12, 2009).

2. The summary of the facts charged of the instant case is that Nonindicted Party 1, who had operated the instant restaurant, was employed by the Defendant as the head of the cooking office on April 17, 2013, did not pay part of wages and part of retirement allowances within 14 days from the date of retirement without agreement on extension of the payment due date.

However, according to the records, Nonindicted 2, a co-manager of the instant restaurant, who is the Defendant’s husband and the co-manager of the instant restaurant, can be found to be in violation of Article 27 of the Labor Standards Act, since he was dismissed by Nonindicted 1 on April 16, 2013 and did not notify in writing the grounds for dismissal and the time of dismissal, the above dismissal is null and void. Therefore, it cannot be deemed that the labor relationship between the Defendant and Nonindicted 1 was lawfully terminated, and no other evidence exists to prove that the labor relationship between the Defendant and Nonindicted 1 was terminated at the date of retirement recorded in the facts charged. Thus, it cannot be deemed that the Defendant did not have the obligation to pay retirement allowances or to liquidate money and valuables to Nonindicted 1 on the date of retirement. Thus, the crime of violation of Articles 44 subparag. 1 and 9 of the Retirement Benefits Act and Articles 109(1) and 36 of

Nevertheless, the lower court found all of the facts charged in this case guilty on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the duty to pay retirement allowances under Article 9 of the Retirement Benefits Act and the requirements for the duty to liquidate money and valuables under Article 36 of the Labor Standards

3. Therefore, without examining the grounds of appeal, the court below is reversed, and the case is remanded to the court below 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 Jae-hyung (Presiding Justice)