2012 Fixed 4007 Violation of the Labor Standards Act

D0 (35 - 1), representatives of 00 hospitals

Seoul Housing Jongno-gu Seoul

Seoul Reference domicile Jongno-gu

b. Number of public prosecutions (prosecutions) and number of public prosecutions (public trial)

Attorney Kim Hyun-soo

February 21, 2013

Defendant shall be punished by a fine of one million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

The defendant is the representative of 00 hospitals in Yangcheon-gu Seoul Metropolitan Government and is the employer who runs the medical business using 600 regular workers.

1. Point of granting recess hours;

An employer shall allow a recess of not less than 30 minutes if working for four hours or one hour if working for eight hours. Nevertheless, from August 29, 201 to August 31, 201, the Defendant did not grant the above rest time to A who was engaged in night security duties at the above hospital and to B who was engaged in driving and parking management duties, such as ambulances, from April 9, 2006 to December 10, 201.

2. Point where the working conditions are unknown;

An employer shall specify wages, working hours, and other working conditions for a worker when concluding a labor contract, and in such a case, it shall specify in writing the constituent items, calculation method, and payment method of wages. Nevertheless, the Defendant did not specify in writing the working conditions on August 29, 2010, such as the constituent items, calculation method, and payment method of wages when concluding a labor contract with a worker A.

Summary of Evidence

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 110 subparag. 1 and 54(1) of the Labor Standards Act (the fact that a recess is not granted, the choice of a fine) and Articles 114 subparag. 1 and 17 of the Labor Standards Act (the fact that working conditions are not specified in writing)

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Judgment on the defense counsel's assertion under Article 334 (1) of the Criminal Procedure Act

1. As to the failure to grant recess hours

A. The defense counsel asserts that workers A has night security work, workers B has been engaged in the operation and parking management of ambulances, and that the above work constitutes management and supervision work under Article 59 subparagraph 4 of the Labor Standards Act (hereinafter referred to as the "Act") and Article 34 of the Enforcement Decree of the Act, and therefore, it is possible to change recess hours under Article 54 of the Act or is not subject to the provisions of Article 63 of the Act.

B. However, Article 59 of the Act is not a provision related to each worker's work, but related to the business operated by the employer. Thus, the defendant's business operated by him cannot be seen as management, supervision, or confidential information under Article 59 subparagraph 4 of the Act and Article 34 of the Enforcement Decree of the Act. Rather, it can be viewed as medical and sanitary business under Article 59 subparagraph 3 of the Act. However, even in this case, it can change the recess hours only when the employer made a written agreement with the representative of workers pursuant to the main sentence of Article 59 of the Act, and there is no evidence to prove that such written agreement exists. Thus, the defense counsel's assertion that the hours of recess can be changed cannot be accepted.

C. Meanwhile, the duty of the above workers may be deemed to constitute surveillance or intermittent work. However, according to Article 63 subparagraph 4 of the Act, in the case of surveillance or intermittent work, there is no evidence to acknowledge that the employer can only apply the provisions on working hours, recess and holiday only to the worker approved by the Minister of Employment and Labor, and that such approval was obtained. Thus, the defense counsel’s assertion that the pertinent worker is subject to exclusion from the provision on recess hours is not acceptable.

2. As to the fact that working conditions are not specified, the defense counsel's defense counsel concluded an employment contract in the inclusive wage system with the worker A, and the defendant could not conclude an employment contract by specifying working conditions in light of the nature of the guard work, so this part of the facts charged is alleged not to be guilty. However, just because it is an employment contract in the comprehensive wage system with the worker performing the guard work, the obligation to specify important matters such as wages and working hours is lost or it is not impossible to specify in writing the constituent items, calculation method, payment method, etc. of wages. Thus,

Judge Lee Jin-jin