The prosecutor's appeal is dismissed.

1. In light of the purport of the Minimum Wage Act to stabilize the livelihood of workers and improve their working conditions, the work guidelines of the Korea Labor Agency, and the amended minimum wage-related Acts and subordinate statutes, the working hours to apply the minimum wage shall be calculated by 209 hours per month (=40 hours (40 hours (8 hours (48 hours) x 45 hours) x 45 hours) including the hours paid as overtime allowances. The overtime allowances of 409,930 won shall be excluded from the wages to apply the minimum wage, taking into account the background in which overtime allowances were made, the meaning of the name thereof, etc.

In addition, E shall, in addition to the basic work of five days per week, additionally work one day for three to four hours on duty per week, and actually decide to work 42 hours per week, and the hours exceeding the statutory working hours are overtime hours. As such, E shall pay overtime allowances for the 13.04 hours per month [The extended two hours additional hours x 4.345 weeks].

Nevertheless, the lower court determined that the Defendant paid wages exceeding the minimum wage amount to E by calculating the hours of overtime work, including overtime work allowances of KRW 409,930, and overtime work allowances of KRW 409,930, and the Defendant paid overtime work allowances of KRW 1,020,306 in excess of the minimum wage amount, and that overtime work allowances of KRW 1,020,306 are not so.

Even if the defendant did not have any intention to violate the Minimum Wage Act and the Labor Standards Act, it is erroneous for the defendant to be acquitted on the violation of the Minimum Wage Act and the violation of the Labor Standards Act, which affected the conclusion of the judgment.

2. Determination

A. In calculating the comparable minimum wage, the former Enforcement Decree of the Minimum Wage Act (amended by Presidential Decree No. 29469, Dec. 31, 2018; hereinafter “former Enforcement Decree of the Minimum Wage Act”) on whether the weekly holiday allowance includes working hours related to the weekly holiday allowance.