[1] Criteria for determining "inevitable circumstances which could not be paid by the due date", which are grounds for exemption from violation of the duty to pay wages, etc. within the due date under the Labor Standards Act

[2] The case rejecting Defendant’s assertion of exemption from payment in arrears, such as wages, on the ground that it is difficult to find that there are inevitable circumstances where wages or retirement allowances could not be paid to retired workers in light of the Defendant’s efforts and measures for liquidation

[1] The crime of violating the duty to pay wages, retirement allowances, etc. as stipulated in Articles 112 and 36 of the Labor Standards Act is exempted only when the employer has made the best efforts to pay them. However, in light of social norms, it is acknowledged that the inevitable circumstances such as financial situation due to financial difficulties, etc., which were unable to be paid within the due date due to financial difficulties, etc., the employer cannot be exempted from liability merely because the employer was unable to pay them with pressure due to financial difficulties, etc., and in determining whether there was "inevitable circumstances that could not be paid within the due date", it can be said that the employer made the best efforts to repay the wages, retirement allowances, etc. to the fullest extent possible in order to promote the stabilization of the livelihood of retired workers, etc., and presented a clear resolution of future repayment plan to the extent possible, and whether there was an objective measure that can be objectively assessed as a reasonable level from the standpoint of the retired workers, etc., and whether there

[2] The case rejecting the defendant's assertion on the exemption from payment in arrears, such as wages and retirement allowances, on the ground that it is difficult to recognize that there is an inevitable circumstance in which the retirement worker could not be paid wages or retirement allowances, on the ground that the management status of the company that the company had been acquired and operated continues to worsen, and the defendant was limited to the reduction of the number of employees by recommending or resignation workers on the ground of the poor management status, and there was no effort to repay wages or retirement allowances to the retired worker for the liquidation of the retirement worker or there was no specific presentation of the future repayment plan

[1] Articles 36 and 112 of the Labor Standards Act / [2] Articles 36 and 112 of the Labor Standards Act

[1] Supreme Court Decision 87Do604 delivered on May 26, 1987 (Gong1987, 1112) Supreme Court Decision 97Do1490 delivered on September 30, 1997 (Gong1997Ha, 3359) Supreme Court Decision 2002Do649 Delivered on November 26, 2002 (Gong2003Sang, 273)

Defendant

Defendant

Attorney Choi Jin-si et al.

Seoul Central District Court Decision 2005No377 Decided November 16, 2005

The appeal is dismissed. 65 days out of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

The crime of violating the obligation to pay wages, retirement allowances, etc. under Articles 112 and 36 of the Labor Standards Act, even though the employer has made the best efforts to pay them. However, the employer is exempted from liability only when the inevitable circumstances, such as financial situation due to the failure to pay them within the due date, are acknowledged in light of social norms, and the employer cannot be exempted from liability merely because it was impossible for the employer to pay them with pressure due to the failure of management, etc. (see Supreme Court Decision 2002Do649, Nov. 26, 2002, etc.).

In this regard, Article 36 of the Labor Standards Act provides for the duty to pay wages or retirement allowances within the fixed date and imposes criminal punishment if a worker violates Article 112 of the same Act, the legislative purpose of which is to compel the safety board to be prepared in order to secure the stability of the livelihood of such worker in the event of the worker’s death or retirement. In such a case, in determining whether there is an inevitable circumstance in which wages or retirement allowances could not be paid within the fixed date, the measures that can be objectively assessed at a reasonable level from the standpoint of the retired worker, etc. can also be a specific table, such as making maximum efforts to repay the wages or retirement allowances to the fullest extent possible in order to promote the stability of the livelihood of the retired worker, etc., and clearly suggesting the repayment plan for the future in order to promote the stability of the livelihood of the retired worker, etc.

According to the records, as the corporate management status of the company that the defendant had taken over and operated has deteriorated continuously, it is limited to the reduction of the number of workers, such as recommending workers from February 2003 on the ground of the poor management status, and there was no effort to repay wages or retirement allowances to the retired workers or there was no specific presentation of the future repayment plan, and there was a trace of consultation with the worker in good faith.

Therefore, in light of the above legal principles and the above facts, the court below rejected the defendant's assertion about the exemption from delayed payment of wages, etc., and it is just to find the defendant guilty of facts constituting a crime in the judgment below, with the purport that the court below cannot be deemed as a case where there are inevitable circumstances in which the defendant could not pay wages or retirement allowances to retired workers. The court below did not err by misapprehending the legal principles as to misconception of facts against the rules of evidence

Therefore, the appeal is dismissed and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)