(영문) 대전지방법원 2020.10.28. 선고 2019구합104876 판결

A. On September 20, 2018, the Plaintiff was appointed as the representative C’s agent for the representative director B Co., Ltd. (hereinafter “instant company”).

B. On December 28, 2018, D filed a complaint against the Plaintiff on the delayed payment of wages with the purport that “D worked for the instant company, but the Plaintiff delayed payment of wages on October 2, 2018 and November 11, 2018.” On July 2, 2019, the Defendant directed the Plaintiff to correct the violation of the Labor Relations Act (hereinafter “instant corrective order”).

|1. D이 2018. 12. 28. 귀하를 상대로 제기한 진정사건 관련 내용입니다.2. 위 진정사건을 조사한 결과, 귀하는 아래와 같이 법을 위반하여 벌칙 적용 대상임이 확인되었습니다. 그러나 진정인이 권리구제만을 원하여 시정기회를 부여하오니, 시정기한까지 법 위반사항을 시정하시고 그 결과를 제출하여 주시기 바랍니다.

[Reasons for Recognition] Each entry of Gap evidence 1, 2, Eul evidence 2, and 3 (including each number; hereinafter the same shall apply)

2. The plaintiff's assertion

The corrective order of this case shall be cancelled as follows is erroneous.

A. In giving the instant corrective order, the Defendant failed to inform the Plaintiff of the procedure of prior notification, hearing of opinions, and presentation of reasons for the disposition, and did not inform the Plaintiff of the method of appeal. This violates Articles 21, 22, 23, and 26 of the Administrative Procedures Act.

B. In order to recognize the employer’s delayed payment of wages as illegal, there should exist an employment contract, but the Plaintiff did not know whether there exists a labor contract between D and the instant company. In addition, the Plaintiff is merely a representative director of the instant company appointed by the court and cannot be deemed an employer under the Labor Standards Act. Thus, the Plaintiff cannot be subject to a disposition under the Labor Standards Act against the Plaintiff.

A. The defendant's assertion

The instant corrective order is based on the main sentence of Article 21(1) and attached Table 3 of the Labor Inspector Work Regulations, and it is merely an administrative guidance with a view to creating de facto effects through voluntary cooperation of the other party, rather than a certain legal effect. Thus, the instant corrective order cannot be deemed an “disposition” subject to appeal litigation.

B. Determination

1) Whether a certain act of an administrative agency can be a subject of an appeal can not be determined abstractly or generally, and an action is not subject to an appeal litigation. The act that does not cause a direct legal change in the legal position of the other party or other related persons, such as the subject, purport, form, and procedure of the relevant Act and subordinate statutes, actual relation between the act and the disadvantage suffered by the interested parties, such as the other party, etc., the actual relation between the act and the disadvantage suffered by the interested parties, the principle of rule of law administration, and the attitude of interested parties, etc. (see, e.g., Supreme Court Decisions 2010Du7321, Jun. 10, 201). It is not subject to an appeal litigation (see, e.g., Supreme Court Decisions 2008Du3500, Apr. 24, 2008; 2015Du43974, Mar. 12, 2015).

2) In light of the above legal principles, the instant corrective order is merely an administrative guidance or recommendation, which aims not to generate a certain legal effect, but rather to generate a de facto effect through voluntary cooperation of the other party, and cannot be deemed as an administrative disposition that is subject to an appeal litigation, for the following reasons.

(1) Under the relevant Acts and subordinate statutes, such as the Labor Standards Act or the former Labor Inspector Work Regulations (amended by the Ordinance of the Ministry of Employment and Labor No. 291, Aug. 30, 2019; hereinafter referred to as "the Work Regulations in this case"), there is no provision that a labor inspector grants an authority to impose sanctions, such as fines for negligence, against an employer who violates an order for correction, or imposes an obligation to comply with an order for correction.

② Article 44(1) of the Work Regulations provides that “If an employer instructs the employer in writing to make corrections and fails to comply with a deadline, the employer shall immediately prepare a report on the offender and initiate an investigation with respect to the matters that require correction, among the measures against violations under [Attachment 3] discovered in the course of performing his/her duties, the supervising officer shall not impose sanctions against nonperformance of corrective instructions.” However, the commencement of an investigation by the reading officer is only an effect caused by the failure of autonomous correction on the violation of Article 43 of the Labor Standards Act, and it is not a sanction against nonperformance of corrective instructions.

③ Ultimately, the purport of the instant corrective order is to promptly remedy the workers’ rights and to give the business owner an opportunity to voluntarily correct the relevant violation before commencing an investigation, and cannot be deemed to have imposed a separate sanction against the violation of the corrective order.

④ The employer’s obligation to pay wages to workers arises not only by the instant corrective order, but also by Article 43 of the Labor Standards Act, and the effect of criminal punishment and disclosure of the list, etc. due to delayed payment of wages, is not a sanction for non-compliance with the corrective order, but also by Articles 109, 43-2 and 43-3 of the Labor Standards

3) Therefore, the instant corrective order cannot be deemed a disposition that is subject to an appeal litigation.

The defendant's main defense is justified.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.