(영문) 서울행정법원 2016.8.18. 선고 2015구합8077 판결

1. All of the lawsuits filed by the Plaintiff against the Defendant Seoul Regional Employment and Labor Agency, and the head of the Seoul Regional Employment and Labor Agency shall be dismissed;

2. The plaintiff's request against the Central Administrative Appeals Commission is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

The defendant Central Administrative Appeals Commission confirmed that the ruling made by the defendant on April 21, 2015 by the defendant Central Administrative Appeals Commission was null and void. The decision made by the head of the Seoul Regional Employment and Labor Agency on July 18, 2013 against the plaintiff's delayed payment of wages and other appeals shall be revoked; the decision made on February 13, 2014 against the plaintiff's complaint and accusation; the decision made on October 14, 2014 against the plaintiff's delayed payment of wages; the decision made on January 30, 2015 against the plaintiff's administrative appeal shall be revoked; the decision made by the head of the Seoul Regional Employment and Labor Agency on September 29, 2010 against the plaintiff's delayed payment of wages shall be revoked; and the decision made on December 7, 2010 against the plaintiff's delayed payment of wages shall be revoked.

Reasons

1. Basic facts

A. The plaintiff's status

The plaintiff is a person who asserts that he was forced to suspend his business on October 1, 2009, when he was working for the company B (hereinafter referred to as the "company B") in accordance with the rules of employment illegally amended by the company B.

B. The Plaintiff’s petition and its result against the head of the Seoul Northern District Office;

1) On September 3, 2010, the Plaintiff filed a petition on the ground that the representative director of the instant company did not comply with the procedure to obtain consent from workers when he had modified the rules of employment disadvantageously to the Seoul Northern District Office. However, on September 29, 2010, the head of the Seoul Northern District Office notified the Plaintiff of the processing results of the reported case on the ground that there was no violation of the law as a result of the investigation conducted on September 29, 2010.

2) On September 29, 2010, the Plaintiff filed a petition with the same content again to the Seoul Northern District Office. However, on December 7, 2010, the head of the Seoul Northern District Office notified the notification of the processing results of the reported case to the effect that the head of the Seoul Northern District Office completed the administration on the grounds that there was no violation of the Labor Standards Act under the direction of the prosecutor on December 7, 2010.

C. The Plaintiff’s petition and its result against the Commissioner of the Seoul Regional Employment and Labor Agency

1) On December 9, 2013, the Plaintiff filed a complaint with the representative director of the instant company with the Seoul Regional Employment and Labor Agency. However, on February 13, 2014, the head of the Seoul Regional Employment and Labor Agency notified the Defendant of the processing results of the reported case to the effect that the instant case was sent according to the prosecutor’s investigation direction.

2) On August 19, 2014, the Plaintiff filed a petition with the Seoul Regional Employment and Labor Agency, on September 3, 2014, and on September 9, 2014, to demand the difference between wages that can be paid if the Plaintiff had worked normally without forced suspension of business pursuant to the rules of employment invalid due to the violation of the amended procedures. Accordingly, on October 14, 2014, the head of the Seoul Regional Employment and Labor Agency notified the head of the Seoul Regional Employment and Labor Agency of the results of handling the reported case to the effect that the administration is terminated because the violation of the Act

D. Plaintiff’s administrative appeal against the Central Administrative Appeals Commission

1) On December 18, 2014, the Plaintiff asserted that the instant company violated the Labor Standards Act by failing to obtain consent, even though it modified the rules of employment disadvantageous to the employee, and thus, it did not comply with the Labor Standards Act. However, the head of the Seoul Regional Employment Agency notified the Plaintiff of the processed result of the instant case on December 18, 2014, on the ground that the instant company did not violate the Labor Standards Act, and thus, the head of the Seoul Regional Employment Agency notified the Plaintiff of the processed result of the instant case that was

2) The Plaintiff filed an administrative appeal with the Seoul Regional Employment and Labor Agency on January 11, 2015 and the Seoul Regional Employment and Labor Agency on December 18, 2014, to revoke the processing result of the Plaintiff’s report filed by the head of the Seoul Regional Employment and Labor Agency and order the head of the Seoul Regional Employment and Labor Agency to compensate the instant company for the wage difference during the Plaintiff’s compulsory suspension period. However, as to the revocation claim on April 21, 2015, the Defendant Central Administrative Appeals Commission rendered a ruling dismissing the Plaintiff’s request for administrative appeal on the ground that the notification of the processing result of the report filed by the head of the Seoul Regional Employment and Labor Agency on December 18, 2014 cannot be deemed an administrative disposition subject to administrative appeal, on the ground that there is no illegal or unjust refusal or omission, which is a premise for the trial on the fulfillment of the duty (hereinafter “instant

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4 through 7, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the legitimacy of the lawsuit against the head of the Seoul Regional Employment and Labor Office, and the head of the Seoul Regional Employment and Labor Office’s Seoul Northern Site

A. The plaintiff's assertion

The company of this case did not amend the rules of employment disadvantageous to workers with the content of compulsory suspension of business, but did not go through legitimate procedures under the Labor Standards Act, and accordingly, the plaintiff filed a petition against the representative director of the company of this case with the Seoul Regional Employment and Labor Office and the Seoul Regional Employment and Labor Office, Seoul Regional Employment and Labor Office on the ground of the violation of the Labor Standards Act. However, since the defendant Seoul Regional Employment and Labor Office and the Seoul Regional Employment and Labor Office were issued to the company of this case for the reason that the company of this case was not guilty of violating the Labor Standards Act, the above Defendants’ disposition that

B. Main safety defense of the Defendants

The notification of the result of handling the reported case filed by the Defendants to the Plaintiff does not result in infringement of any rights or legal effect on the Plaintiff. Therefore, the Plaintiff’s lawsuit against the Defendants is inappropriate because it does not relate to the disposition subject to administrative litigation.

1) The existence of an administrative disposition, which is the subject of a lawsuit in an administrative litigation, is a lawful requirement. Thus, if there is no disposition seeking revocation by the Plaintiff, the lawsuit must be dismissed on an unlawful basis (see Supreme Court Decision 96Nu6707, Aug. 26, 1997).

ex officio, the part of the Plaintiff’s claim for revocation of the disposition that the Plaintiff sought revocation against the head of the Seoul Local Labor Agency on July 18, 2013 and against the head of the Seoul Local Labor Agency on January 30, 2015, is unlawful on the ground that there is no evidence to acknowledge that the Defendant Regional Labor Agency issued such a disposition. As such, the part of the Plaintiff’s claim for revocation of the disposition that the Defendant’s Defendant’s Defendant’s Seoul Local Labor Agency’s violation was committed against the head of the Seoul Local Labor Agency on July 18, 2013 and January 30, 2015, is unlawful on the ground as alleged by the Plaintiff, even if the head of the Seoul Local Labor Agency, as alleged by the Plaintiff, did so, for the following reasons.

2) The term "administrative disposition", which is the object of an appeal litigation, refers to an act of an administrative agency under public law, which is an act directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects with respect to a specific matter, and an act, etc., which does not directly cause legal changes in the legal status of the other party or other persons concerned, such as actions, intermediation, solicitation, and de facto notification within the administrative authority, is not an administrative disposition that is the object of an appeal litigation (see Supreme Court Decision 96Nu433 delivered on March 22,

On the other hand, the appeal against an investigative agency is not an exercise of legal right pursuant to the provisions of law, but an investigation agency’s declaration of the intention to be properly handled by the investigation agency based on the appeal is merely an internal processing method of the investigation agency with respect to the case without binding force, and thus, it cannot be said that direct change in specific rights and obligations of the petitioner is not an administrative disposition subject to appeal litigation. In addition, the judicial police officers have the authority to investigate the case and send the relevant documents and evidential materials to the prosecutor (Articles 196, 238 of the Criminal Procedure Act), institute a public prosecution, or institute a non-prosecution disposition (Articles 246 and 257 of the Criminal Procedure Act). Thus, the act of sending the documents and evidential materials without investigating the case is merely a pre-decision of the prosecutor to the prosecutor before the prosecution is made, and the act of ordering the complainant to bear a duty under the public law or directly affecting the legal status of the complainant and thus, cannot be subject to appeal litigation (see Article 196, 231, 2013).

However, the notification of the result of handling the reported case issued by the head of the Seoul Regional Employment and Labor Agency on February 13, 2014 was sent by the non-prosecution. The notification of the result of handling the reported case rendered on October 14, 2014 is a disposition to terminate the Plaintiff’s appeal, and the notification of the result of handling each reported case rendered on September 29, 2010 and December 7, 2010 by the head of the Seoul Regional Employment and Labor Agency (Seoul Regional Employment and Labor Agency) was also a disposition to complete internal investigation against the Plaintiff’s appeal. Accordingly, the Plaintiff’s notification of the result of handling each reported case rendered on February 13, 2014 and the Plaintiff’s notification of the result of handling each reported case filed on October 14, 2014 and the lawsuit against the head of the Seoul Regional Employment and Labor Agency (Seoul Regional Employment and Labor Agency)’s head of the Seoul Regional Employment and Labor Agency (hereinafter “Seoul Regional Employment and Labor Agency”). Thus, it is unlawful as it is not against administrative disposition.

3. Determination on the request from the Central Administrative Appeals Commission

A. The plaintiff's assertion

Although the head of the Seoul Regional Employment and Labor Agency has sustained losses, such as forced suspension of business against the plaintiff due to the notification of the result of the reported case by the head of the Seoul Regional Employment and Labor Agency, and the above notification by the head of the Seoul Regional Employment and Labor Agency did not affect the legal status of the plaintiff

In accordance with the Labor Standards Act, the Plaintiff filed an application with the Seoul Regional Employment and Labor Agency for correction of the failure to receive wages due to the violation of the instant company, but the Seoul Regional Employment and Labor Agency rejected the Plaintiff’s application and subsequently rejected the application, but the said Defendant erred by misapprehending that there was no refusal disposition or omission by the head of the Seoul

Therefore, the ruling of this case is unlawful.

B. Determination

1) Determination as to the rejection of a claim seeking revocation of notification of the result of handling a reported case

The term "disposition subject to administrative appeal" means an act under the public law of an administrative agency, which causes direct changes in the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations pursuant to Acts and subordinate statutes, or giving rise to other legal effects.

The notification of the result of the instant report filed by the head of Seoul Regional Employment and Labor Agency on December 18, 2014, seeking revocation in the instant adjudication, is an act that does not directly change the legal status of the Plaintiff as a result of the completion of internal investigation on the Plaintiff’s petition, and thus does not constitute an administrative appeal. Therefore, this part of the administrative appeal seeking revocation against non-disposition is unlawful.

2) Determination on the part dismissing the claim that the instant company compensates for the difference in wages during the period of compulsory suspension

Article 5 subparagraph 3 of the Administrative Appeals Act provides that "an administrative appeal against an illegal or unfair refusal or omission by an administrative agency against an administrative agency's application for a certain disposition" as one of the administrative appeals. Thus, in order for a trial against the fulfillment of a duty to make a lawful appeal, there must be a refusal or omission subject to the appeal. In addition, in order to recognize a refusal or omission, a party must have the right to request the administrative agency to conduct an administrative act upon application.

On the other hand, if the plaintiff suffered damages due to the illegal suspension of business of the company of this case, the company of this case can seek damages from the company of this case through civil procedure or request remedy from the Labor Relations Commission which is not the Employment and Labor Agency pursuant to Article 28(1) of the Labor Standards Act, separate from whether the plaintiff can make a request for remedy, it does not seem that the plaintiff has a legal or logical right to order the head of the Seoul Regional Employment and Labor Agency, the respondent of the ruling of this case to compensate for the difference of wages during the period of compulsory suspension of business. Therefore, as alleged by the plaintiff, the head of the Seoul Regional Employment and Labor Agency, the respondent of the ruling of this case, did not perform any act on the plaintiff's above request. Even if it is difficult to recognize that the head of the Seoul Regional Employment and Labor Agency has made a refusal disposition or omission

3) Sub-committee

Ultimately, the plaintiff's claim for administrative appeal shall be dismissed as it is unlawful, and the ruling of this case, which is based on this conclusion, is legitimate.

4. Conclusion

Therefore, the plaintiff's lawsuit against the head of the Seoul Regional Employment and Labor Office and the head of the Seoul Regional Employment and Labor Office is unlawful, and all of them are dismissed. The plaintiff's claim against the Central Administrative Appeals Commission is without merit, and it is dismissed. It is so decided as per Disposition.