2013 High Court 1758 Violation of the Labor Standards Act

A

Training pen (prosecution), immigration (public trial)

Attorney B (Korean National Assembly)

February 17, 2014

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.

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

Of the facts charged in the instant case, the violation of the Labor Standards Act against workers C shall be acquitted.

Criminal facts

The defendant is the representative director of the management committee in Ansan-gu, Ansan-si, the defendant is an employer who employs 34 full-time workers and operates a service business.

1. From May 1, 201 to April 30, 2012, the Defendant employed F and G in the said workplace and had them work, and even within 14 days from the date of retirement, the Defendant did not pay each wage of KRW 741,120 as indicated in the following table.

A person shall be appointed.

2. The Defendant, from November 1, 201 to April 30, 201, employed H and had the said workplace start up, and did not pay KRW 185,280 as indicated in the following table within 14 days from the date of retirement.

A person shall be appointed.

Summary of Evidence

1. Partial statement of the defendant;

1. The statement of each part of the police suspect examination protocol against the defendant;

1. Statement of each police statement to C, I and J;

1. A complaint;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 109(1) and 36 (Selection of Fine) of the Labor Standards Act

1. Aggravation for concurrent crimes;

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

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The acquittal portion

1. Summary of this part of the facts charged

A. The Defendant did not pay the workers C wages of KRW 1,159,707 within 14 days from the date of retirement without an agreement on the extension of the payment date between the parties.

B. The Defendant did not pay wages of KRW 7,089,080 to Workers F within 14 days from the date of retirement without an agreement on the extension of the due date between the parties.

C. The Defendant did not pay wages of KRW 7,089,080 to G to workers within 14 days from the date of retirement without an agreement on the extension of the due date between the parties.

D. The Defendant did not pay wages of KRW 3,362,240 to Workers H within 14 days from the date of retirement without an agreement between the parties on the extension of the due date.

2. Determination

A. Presumed facts

(1) Conclusion of a comprehensive wage contract

(3) When an employer concludes a wage payment contract under the so-called comprehensive wage system that the total amount of the above allowances shall be determined as monthly wage or daily wage, or that the worker would work as an employee without calculating the basic wage in consideration of the working hours, the form of work and the nature of the work, etc., and if it is deemed that there is no disadvantage to the worker and that it is justifiable in light of all the circumstances, it shall not be deemed null and void (see Supreme Court Decision 96Da2469, Mar. 24, 1998, etc.). In light of the circumstances such as ① the fact that the above worker C, F, G, and H are the security guards of the apartment house located in Ansan-gu, Seoul, and thus, it is difficult to comprehensively conclude the above comprehensive wage payment contract with the part of the worker's daily wage payment without any agreement to pay the worker's wages to the worker at the time of signing the above comprehensive wage payment contract and the part of the worker's wage payment contract to which the above worker's daily wage payment would have exceeded the standard working hours under the Labor Standards Act, and the basic wage payment.

(2) Duty to pay wages above the minimum wage

Meanwhile, even if the comprehensive wage contract is effective as above, if the employer did not obtain the approval of the Minister of Employment and Labor as to the exclusion from the application of the minimum wage under the Minimum Wage Act, the provision on the minimum wage under the Minimum Wage Act shall apply to the worker, and as such, the employer is obligated to pay wages above the minimum wage (see, e.g., Supreme Court Decision 2007Do4737, Oct. 11, 2007)

According to the records, the LAE may recognize the fact that it has not obtained the approval of the Minister of Employment and Labor with respect to the exemption from the application of the minimum wage, and the defendant, who has not obtained the approval of the Minister of Employment and Labor, shall pay the workers

(b) Calculation method and amount of the minimum wage;

(1) In the case of a valid comprehensive wage system, the meaning of guaranteeing the minimum wage to workers is not to mean that the basic wage is paid at the minimum wage level publicly notified by the Ministry of Employment and Labor, but to mean that the total wage including the allowance is paid at the minimum wage level publicly notified by the Ministry of Employment and Labor (see, e.g., Supreme Court Decision 92Da3398, May 7, 1993). In this case, whether the minimum wage amount under the Minimum Wage Act is below the minimum wage amount, including the allowance, should be determined based on the total wage amount.

In addition, wages for the application of the minimum wage shall be converted into the amount calculated by dividing the amount of wages determined on a monthly basis by the number of prescribed working hours per month (Article 5 (1) 3 of the Enforcement Decree of the Minimum Wage Act).

(2) According to the records, workers can be found to have worked 19 hours a day (11 hours a day extended, 5 hours a day) on a day-day basis.

Therefore, in light of the purport of the instant comprehensive wage contract, which considers overtime or night work as naturally anticipated, the monthly contractual work hours should be deemed not to be 410 hours in addition to 19 hours a day’s actual work hours, but to be 289 hours calculated based on only 19 hours a day’s actual work hours x 365 days x 2 days (day-day system): 12 months and below the decimal point.

(3) The difference between the minimum wage to be paid to the instant worker and the wage actually paid by the Defendant according to such standard is calculated as follows.

(a) Workers C

A person shall be appointed.

Therefore, since the employee C cannot be deemed to have accrued unpaid wages, this part of the facts charged constitutes a case where there is no proof of crime.

The amount of wages that workers F and G paid to workers F and G shall be KRW 741,120, as stated in the facts charged in the judgment, and the portion exceeding KRW 741,120 out of KRW 7,089,080 as stated in this part of the facts charged shall be deemed to constitute a case where there is no proof of crime.

2) Workers H

The amount of wages that the defendant paid to H is 185,280 won as stated in the facts charged in the judgment, and the portion exceeding 185,280 won out of 3,362,240 won as stated in this part of the facts charged constitutes a case where there is no proof of crime.

3. Conclusion

A. Therefore, the facts charged as to the violation of the Labor Standards Act against workers C are pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act.

B. The facts charged as to the violation of the Labor Standards Act against workers F, G, and H should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the guilty of the violation of the respective Labor Standards Act as stated in this part of the facts charged, it shall not be sentenced

Judges Kim Gin-han

(a) Basis of calculation: 289 hours per month and 19 hours X 365 days: 2 days (day-day system): 12 months and below the decimal point;