(영문) 서울중앙지방법원 2015.03.13 2014노5031

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(영문) 서울중앙지방법원 2015.03.13 2014노5031

근로기준법위반

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The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 300,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. On December 22, 201, E related to the crime of erroneous determination of facts or misapprehension of legal principles, declared that he/she does not want to be punished against the Defendant on the payment of unpaid wages at the Jeonju District Labor Agency prior to the prosecution of this case. The Defendant, on June 14, 2012, paid the full amount of unpaid wages to E prior to the prosecution of this case, thereby having achieved the effect of expression of intention of punishment as a result of the fulfillment of the given condition, this part of the indictment shall be dismissed. 2) Since E related to the crime of failure to pay advance payment allowances is voluntarily resigned from the company, and the Defendant was not obligated to pay advance payment allowances on the premise of dismissal, the lower court erred by misapprehending the fact that the Defendant was guilty.

B. The lower court’s sentence of unreasonable sentencing (the fine of KRW 500,000) is too unreasonable.

2. Determination

A. 1) Determination of mistake of facts and misapprehension of legal principles regarding the crime of non-performance of wages (based on bonuses) in order to recognize that the victim expressed his/her wish not to punish or withdrawn his/her wishing to punish, the victim’s true intent should be expressed in a way that is obvious and reliable (see, e.g., Supreme Court Decision 2003Do4934, Jun. 25, 2004). In addition, if the victim’s expression of intent not to punish the victim in the crime of non-performance of legal duties is recognized as the grounds for the dismissal of prosecution, the victim’s expression of intent not to punish the victim in the crime of non-performance of legal duties may result in the court’s trial and trial unstable due to the fulfillment of conditions.

Therefore, it is not allowed to express the intent of conditional non-compliance with the requirement for the establishment of a punishment partner.

According to the records, E is a petitioner at the Jeonju District Labor Office on December 22, 2011.

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