2017Guhap83805 Disposition of revocation of a corrective order

1. International industrial company;

2. MP Korea Co., Ltd.

3. Human Entertainment for a stock company;

4. Superintendent of a stock company.

5. Dominwon Co., Ltd.

6. Barunbloft;

7. Writtenienc Co., Ltd.

8. The solar mining industry; and

9. Man- Manymal wave Co., Ltd.;

10. Nice Co., Ltd.

11. Scenictech Co., Ltd.;

1. The Commissioner of the Central Local Employment Agency;

2. The head of Seoul Regional Employment and Labor Agency;

3. The Commissioner of the Daegu Local Employment and Labor Agency.

4. The Commissioner of Busan Regional Employment and Labor Agency.

5. The Commissioner of Daejeon Regional Employment and Labor Agency.

6. The Commissioner of the Gwangju Regional Employment Agency.

March 7, 2018

March 30, 2018

1. All of the plaintiffs' lawsuits are dismissed. 2. Litigation costs are assessed against the plaintiffs.

With respect to the Plaintiff International Industry Co., Ltd., the Head of the Seoul Regional Employment and Labor Office (hereinafter “the Head of the Seoul Regional Employment and Labor Office”) against the Plaintiff International Industry Co., Ltd., the Head of the Seoul Regional Employment and Labor Office revoked each corrective order as stated in the attached Table 1 as stated by the Head of the Seoul Regional Employment and Labor Office against the Plaintiff Dogwon Co., Ltd., the head of the Defendant Daegu Regional Employment and Labor Office against the Plaintiff Dogwon Co., Ltd., the head of the Defendant Daegu Regional Employment and Labor Office against the Plaintiff Dogwon Co., Ltd., Ltd., and the head of the Daejeon Regional Employment and Labor Office, against the Plaintiff Cheongchik Co., Ltd., Ltd., the head of the Defendant Gwangju Regional Employment and Labor Office revoked on September 28, 2017.

1. Details of the corrective instruction;

A. The Plaintiffs are corporations whose business purpose is human resources supply business, etc. The Paris Cra, Inc., a corporation, the business purpose of which is bread, breath, Pureure manufacture and sales business, etc., runs a franchise business with the trade name of " Parisbrate by entering into a franchise agreement with individual business operators (hereinafter referred to as "franchises")."

B. The Plaintiffs entered into a business agreement with the Paris Croman Co., Ltd. and its franchisees to provide the Plaintiffs with the services of the bread manufacturers and the carpet articles. The Plaintiffs entered into a contract with franchisees and franchisees to provide the Plaintiffs with the services of the bread manufacturers and the carpet articles belonging to the Plaintiffs and to receive the fees from the franchisees, and then, the Plaintiffs provided the services to the franchisees.

D. On July 11, 2017, from around September 19, 2017 to around September 19, 2017, the Defendants issued each corrective order listed in the separate sheet No. 1 (hereinafter “each corrective order”) to the Plaintiffs on September 28, 2017.

E. The Plaintiffs requested the Defendants to extend the deadline for each of the instant corrective orders, and the Defendants extended the deadline for each of the instant corrective orders on October 24, 2017 to November 14, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 6, 7, 12, Eul evidence Nos. 3 and 8 (including branch numbers), the purport of the whole pleadings

2. Determination as to the defendants' defense prior to the merits

A. Summary of the defense prior to the merits

Since each corrective order of this case does not fall under a disposition subject to appeal litigation, all of the plaintiffs' lawsuits are unlawful.

(b) Relevant statutes;

Attached Form 2 shall be as stated in the relevant statutes, etc.

C. We examine the legal nature of each corrective order of this case before determining whether each corrective order of this case constitutes a disposition subject to appeal litigation.

The main text of Article 21(1) of the Labor Inspector Act provides that "the labor inspector shall deal with illegal matters confirmed as a result of the supervision of a workplace in accordance with the criteria for measures against violations in attached Table 3 and shall comply with separate criteria for measures in consideration of violations and the details to be taken in the headquarters, etc.", and the [Attachment Table 3] provides that "If the employer violates Article 56 of the Labor Standards Act, the employer shall set the period for correction to the employer within 14 days. When the employer completes the correction within the prescribed period, the employer shall terminate the internal investigation and shall commence the investigation after reporting whether the offender fails to correct it within the prescribed

Each of the corrective orders of this case made pursuant to the main sentence of Article 21(1) and attached Table 3 of the Labor Inspector Office Regulations is an act of non-power fact which leads an administrative agency to prevent or not to conduct a certain act by means of guidance, recommendation, advice, etc. to the private person, etc. in order to realize a certain administrative purpose, and does not per se aim at a certain legal effect, but constitutes an administrative guidance (Article 2 subparag. 3 of the Administrative Procedure Act) with the aim of creating a de facto effect through voluntary cooperation of the other party. The reasons are as follows.

1) Even in the relevant legal orders such as the Labor Standards Act, there is no provision that compels a labor inspector to preferentially issue a corrective order prior to whether an employer violates Article 56 of the Labor Standards Act is a criminal who has committed a violation. Nevertheless, the Ministry of Employment and Labor, taking into account the fact that giving an employer an opportunity to correct an unlawful act may be beneficial to not only the employer but also the employee, taking into account the fact that giving an employer an opportunity to correct the unlawful act into account not only the offender but also the employee may benefit. Accordingly, an employer’s corrective order under Article 21(1) [Attachment 3] and [Attachment 3] of the Labor Inspector Act does not have any meaning to give an employer an opportunity to correct the unlawful act and seek an employer’s voluntary cooperation.

2) Since the conceptual characteristic of administrative guidance, which is non-powerd factual act, seeks "voluntary cooperation of the other party", the other party's refusal of voluntary cooperation should not be subject to sanctions for this reason. Therefore, if the Defendants are able to impose sanctions against the Plaintiffs in the event that the Plaintiffs fail to comply with each corrective instruction of this case, it cannot be deemed that each of the corrective orders of this case constitutes administrative guidance, and in such a case, it cannot be deemed that each of the corrective orders of this case constitutes administrative guidance. However, there is no ground provision under which the Defendants may impose sanctions against the Plaintiffs in the event that the Plaintiffs fail to comply with each of the corrective orders of this case (the criminal punishment of Article 109 of the Labor Standards Act is a sanction against the violation of Article 56 of the Labor Standards Act or a sanction against the non-compliance with each of the corrective orders of this case).

3) As to this, the Plaintiffs asserted that each of the instant corrective orders constitutes an order to report under Articles 13 and 102(1) of the Labor Standards Act, and that each of the instant corrective orders does not constitute administrative guidance, on the ground that the Defendants may impose an administrative fine not exceeding five million won pursuant to Article 116(1)1 and 3 of the Labor Standards Act in cases where the Plaintiffs did not comply with each of the instant corrective orders.

However, Articles 13 and 102(1) of the Labor Standards Act merely provide a labor inspector with the authority to order a report of "necessary matters related to an administrative investigation" so that the labor inspector can conduct an administrative investigation smoothly. Each corrective order of this case is conducted in order to grant the plaintiffs an opportunity to correct the illegal matters in accordance with the result after the work supervision of a workplace having the nature of an administrative investigation is terminated, and it does not again take place in order to conduct a new administrative investigation. Thus, it does not fall under an order to report under Articles 13 and 102(1) of the Labor Standards Act (the end of each corrective order of this case does not fall under the order to report up to 10, 25, along with evidentiary materials on the result of each corrective order of this case). However, it merely provides the employer with a prior notice of the result of correction in order to prevent a situation in which the employer could not be aware of the illegal matters, and thus, it does not constitute an order to report the correction of the phrase in this case and Article 101(3) of the Labor Standards Act.

D. Whether the disposition of each corrective order of this case is recognized

Whether a certain act of an administrative agency can be a subject of an appeal shall not be determined abstractly, and shall be determined specifically and individually, taking into consideration the contents and purport of the relevant Acts and subordinate statutes, the subject, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, etc., the principle of administration by the rule of law, the attitude of interested parties, etc.

An act that does not directly cause legal change in the legal status of the other party or other relevant persons, such as an act, arrangement, solicitation, and de facto notification, inside an administrative agency, is not subject to appeal litigation (see, e.g., Supreme Court Decision 2014Du43974, Mar. 12, 2015). Each of the instant corrective orders does not constitute a disposition subject to appeal litigation. The reasons are as follows.

1) As seen earlier, each of the instant corrective orders is merely an administrative guidance, the purpose of which is not to generate a certain legal effect, but to generate a de facto effect through voluntary cooperation of the other party. An employer’s obligation to pay overtime work and holiday work allowances to an employee is immediately arising under Article 56 of the Labor Standards Act, and is not arising from each of the instant corrective orders under Article 21(1) main text and [Attachment 3] of the Labor Inspector Management Regulations. Therefore, each of the instant corrective orders cannot be deemed to have any change in the legal status of the Plaintiffs as a result of the instant corrective order.

2) In the event that each of the instant corrective orders is not complied with, if a certain disadvantage measure is scheduled, it would not be different from imposing a duty to comply therewith, and thus, there is room for recognizing the disposition of each of the instant corrective orders. However, as mentioned earlier, there is no ground for allowing the Plaintiffs to take any disadvantageous measure by failing to comply with each of the instant corrective orders, and there is no ground for allowing the Plaintiffs to take any disadvantageous measure (Article 109 of the Labor Standards Act is emphasized once more, but criminal punishment under Article 56 of the Labor Standards Act is not a sanction for the violation of Article 56 of the Labor Standards Act or a sanction

3) Article 21(1) proviso 4 of the Labor Inspector Labor Inspector Act provides that “If a criminal is deemed necessary immediately because he/she has committed a violation of major working conditions due to intention or gross negligence, and thus his/her place of criminal origin is deemed necessary, he/she shall immediately take measures, such as the place of criminal.” Thus, the Defendants, as in the instant case, caused social controversy by intentional or gross negligence by violating the major working conditions

In the case where there is room for doubt, regardless of whether the court rendered a judgment revoking each corrective order of this case, the offender against the plaintiffs can be prosecuted. Also, regardless of whether the court rendered a judgment revoking each corrective order of this case, the company may file a lawsuit seeking payment of unpaid allowances against the plaintiffs in the civil court. Therefore, even if it can be contested through administrative litigation in recognition of the disposition nature of each corrective order of this case, it cannot be fundamentally resolved at an early stage. Thus, there is no practical benefit to acknowledge the disposition nature of each corrective order of this case.

E. Sub-committee

Since each corrective order of this case does not fall under a disposition subject to appeal litigation, all of the plaintiffs' lawsuits are unlawful.

3. Conclusion

Therefore, since all of the plaintiffs' lawsuits are illegal, it is decided to dismiss them. It is so decided as per Disposition.

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung

1) For instance, Article 25-2(4) of the Building Act is the time when construction participants, etc. are an administrative agency under Article 25-2(3) of the Building Act.

Where an administrative agency fails to comply with a fixed order without any justifiable reason, sanctions for suspension of business to construction participants, etc.

Since the Building Act provides that a corrective order under Article 25-2 (3) of the Building Act shall not be subject to administrative guidance.

shall not be required.

(ii)on-site investigation to collect information or data necessary for an administrative agency to decide on or perform its duties;

Activities such as reading, collecting samples, etc. or requesting a person subject to investigation to submit a report, or requesting a person subject to investigation to appear and make a statement;

section 2(1) of the Framework Act on Administrative Investigations.

3) Article 21(2) of the Labor Inspector Act provides that a labor inspector shall report the results of supervision on the violations subject to correction.

A written order for correction in attached Form 14 shall be issued immediately stating the violation, method of correction, deadline for correction, etc.

the end of the attached Form 14 above, the evidence of the result of the correction shall be the same as the fluoral letter.

Along with the fee, the phrase "Emida" is attached to .... to ......, the defendants are stated, and the above attached Form 14 shall apply to the defendants.

In accordance with the form, only the above phrase was used as it is in the process of issuing each corrective order.

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