2017No2113 Violation of the Minimum Wage Act

A

Prosecutor

Completion windows (prosecutions) and Kim Jong-young (public trial)

Attorney B

Daejeon District Court Decision 2017 High Court Decision 110 Decided June 23, 2017

April 12, 2018

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

In this case, when calculating the wages, the basic salary paid as a monthly wage is divided into 173.8 hours per month, and the hourly rate is sought, and the comparable wage should be calculated by dividing the weekly holiday allowance paid as a weekly unit into 40 hours per week, and adding it to the hourly rate of 40 hours per week. However, the court below calculated the comparable wage by adding it to the weekly holiday allowance when calculating the comparable wage. In other words, there is an error of mistake of facts.

2. Determination

Article 5(1)2 and 3 of the Enforcement Decree of the Minimum Wage Act provides that the amount calculated by dividing the wages paid on a weekly or monthly basis by the “number of contractual work hours per week or month” shall be the wage per hour. The so-called weekly holiday allowances, which are paid on paid holidays on a weekly or monthly basis, shall be the wage paid on a regular basis at least once a month for the prescribed work. Thus, Article 6(4) of the Minimum Wage Act and attached Table 1 of the Enforcement Rule of the same Act cannot be deemed as the “wages or allowances that are not included in the wages subject to non-school expenses” and thus, the allowance per week shall be added in calculating the comparative wage (see, e.g., Supreme Court Decision 2006Da64245, Jan. 11, 207).

In calculating the comparative wage of the minimum wage, the lower court determined that the instant facts charged constituted a case where there is no proof of criminal facts. In so doing, the lower court did not err by misapprehending the minimum hourly wage per year when calculating the hourly comparative wage.

In light of the above legal principles, the method of converting comparable wages per hour by the court below is just, and there is no error of misconception of facts as alleged by the prosecutor in the judgment below.

Therefore, the prosecutor's argument of mistake is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

presiding judge, judge Park Byung-chul

Judges Song-hwan

Judges Gin Jae-ology