The prosecutor's appeal is dismissed.

1. Comprehensively taking account of the evidence submitted by the Prosecutor as to the gist of the grounds for appeal (misunderstanding of facts), the J may fully recognize that the Defendant had been under the direction and supervision during the recess hours.

2. The term "work hours for judgment" means the hours during which a worker provides his/her labor under the direction and supervision of an employer, and the hours of recess means the hours during which a worker may freely use because he/she has been relieved of the employer's direction and supervision during his/her working hours;

Therefore, even if a worker does not actually engage in the work during the working hours, the waiting time, rest, or surface time is not guaranteed to the worker free use, but is actually under the employer's direction and supervision, it should be viewed that it is included in the working hours.

It is not uniformly determined according to the type of specific type of business or work whether the break time or surface time defined in the labor contract belongs to the break time.

This ought to be specifically determined on an individual case basis in full view of various circumstances, including the content of a labor contract, the rules of employment and collective agreement applicable to the relevant workplace, the details of the work provided by an employee, the specific work method in the relevant workplace, the employer’s interference or supervision over an employee, whether the employee has been able to freely use the workplace, whether the employee has interfered with the actual rest of the workplace or has any circumstances to recognize the employer’s direction and supervision, and the degree thereof (see, e.g., Supreme Court Decision 2014Da74254, Dec. 5, 2017). The prosecutor asserted the same purport as the grounds

The lower court, based on the circumstances indicated in its reasoning, cannot be deemed as working hours under the direction and supervision of the Defendant, during which the time offered to J was actually set.