[1] The meaning of "a person who acts on behalf of an employer with respect to matters relating to workers" as one of the employers under the former Labor Standards Act

[2] The elements to constitute a ground for exclusion from liability for a violation of Article 36 of the former Labor Standards Act under which a person is unable to pay wages due to economic depression

[1] Article 15 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) provides that the term "employer" refers to a business owner, a person in charge of business management, or any other person who acts on behalf of a business owner with respect to matters relating to workers. The term "person who acts on behalf of a business owner with respect to matters relating to workers" refers to a person who is given specific authority and responsibility by the business owner with respect to matters such as determination of working conditions, such as personnel affairs, wages, welfare, labor management, etc., or orders, direction, or supervision of duties.

[2] The employer is not allowed to delay the payment of wages, etc. to workers solely on the ground that the company is in economic depression. However, if it is recognized that the employer was unable to prevent the delayed payment of wages or the delayed payment of wages even if all gender and efforts were made, and it is recognized that the employer was unable to expect more lawful acts or that it was an inevitable circumstance, such reason constitutes a ground for rejecting liability for the violation of Article 36 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007).

[1] Article 15 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) (Article 2 (1) 2 of the current Act) / [2] Articles 36 and 112 (1) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) (Article 107 (1) of the current Act)

[1] Supreme Court Decision 88Nu6924 delivered on November 14, 1989 (Gong1990, 51) / [2] Supreme Court Decision 2001Do204 delivered on February 23, 2001 (Gong2001Sang, 822) Supreme Court Decision 2002Do3666 delivered on September 24, 2002 (Gong2002Ha, 2645)

Defendant

Defendant

Suwon District Court Decision 2008No106 decided June 12, 2008

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

We examine the grounds of appeal.

Article 15 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007; hereinafter the same) provides that the term "employer" in this Act refers to a business owner, a person in charge of business management, or any other person who acts on behalf of a business owner with respect to matters relating to workers. The term "person who acts on behalf of a business owner with respect to matters relating to workers" in this context refers to a person who is given specific authority and responsibility by the business owner with respect to matters such as determination of working conditions, such as personnel affairs, wages, welfare, labor management, etc., or orders, direction, supervision, etc. of duties (see, e.g., Supreme Court Decisions 88Nu6924, Nov. 14, 1989; 2004Do6285, Nov. 26, 2004);

Meanwhile, the employer is not allowed to delay the payment of wages, etc. to workers solely on the ground that the company is in economic depression, but if it is recognized that the employer was unable to prevent the delayed payment of wages or the delayed payment of wages even if all gender and efforts were made, and that the employer was unable to expect more lawful acts or that it was an inevitable circumstance, such reason constitutes a ground for excluding liability for the violation of Article 36 of the former Labor Standards Act (see, e.g., Supreme Court Decisions 2001Do204, Feb. 23, 2001; 2002Do3666, Sept. 24, 2002).

According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) since June 2005, the president of the Korea Livestock Industry Association of this case, who was the representative of the above branch, did not work at the above branch, left the place of business and left the place of business; (b) the defendant was in the position of managing the above branch from that time to that time, as other employees in the above branch; (c) the office employees of the above branch are six members including the defendant; (d) the defendant was operating the membership fees paid by the above branch; and (e) the defendant received the union fees from the representative of the above branch; and (e) the defendant was responsible for the violation of Article 36 of the former Labor Standards Act from June 1, 2005, as long as the above branch was actually operated from June 205 to June 1, 206; and (e) the defendant did not receive explicit delegation of management or authority and responsibility from the representative of the above branch, and therefore, (e) the defendant was responsible for the late payment of wages from the above workplace to July 201 to 2016.

However, according to the facts established by the court below and records, the defendant continued to work at the above workplace even after the non-indicted 1, the representative of the above workplace in June 2005, is likely to coincide with the interests of the whole employees of the above workplace, such as the defendant and the complainant who did not have any alternative in addition to work at the above workplace. There is no evidence to deem that the defendant had exercised the power as the actual employer during that period, such as recruitment or dismissal of employees, pay, working hours, adjustment of other working conditions, etc. It is hard to see that the non-indicted 1 did not request the slaughter of the above workplace due to the increase of imported livestock products and the continuous reduction of the number of members, and that the defendant did not have been paid benefits to the above employees from the above workplace in the position of the above employees, and that the defendant did not have been paid to the above employees in the position of the above employees at the first instance court, and the defendant did not appear to have been paid to the above employees at the meeting of the court of first instance as well as the above employees at the above employees' meeting of the first instance.

Furthermore, even if the defendant is deemed to operate the above workplace, the representative was abandoned in accordance with the common interests and mutual agreement of all employees including the defendant himself/herself, and continued to operate the workplace in the previous place, but as long as it appears to be in a situation in which all employees are unable to pay the benefits due to structural and qualitative management difficulties, it cannot be ruled out that the defendant could not be seen as cases where the defendant could not be able to prevent delayed payment or non-payment of the wages even if he/she had made efforts with his/her possible gender and ability to do so, and that it constitutes cases where the defendant could no longer expect lawful acts

Therefore, the court below should have deliberated more on the above circumstances, and closely examined whether the defendant constitutes an employer under Article 15 of the former Labor Standards Act and Article 36 of the same Act exists, and should have determined whether the defendant was liable for the violation of Article 36 of the same Act, and then found guilty of the facts charged in this case. However, the court below erred by misapprehending the legal principles under Articles 15 and 36 of the former Labor Standards Act, which led to failure to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit, and the judgment of the court below cannot be reversed.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)