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The judgment below
The guilty part shall be reversed.
A defendant shall be punished by imprisonment for one year.
provided that this ruling has become final and conclusive.
Reasons
1. The summary of the grounds for appeal is that the court below’s punishment (one year and six months of imprisonment, three years of suspended execution, three years of community service work, 120 hours) is too unreasonable in light of the circumstances such as the defendant’s efforts to reach an agreement with the employee. On the other hand, the prosecutor is deemed to be too uneasible and unfair in light of the content and nature of the instant crime.
2. We examine ex officio prior to the judgment on the grounds for appeal by the defendant.
Of the facts charged in the instant case, the lower court: (a) applied Articles 109(1) and 36 of the Labor Standards Act to the portion unpaid as retirement allowances to workers H, N, and P [Article 109(1) and Article 36 of the Labor Standards Act; (b) however, pursuant to the Guarantee of Workers’ Retirement Benefits Act enacted on January 27, 2005 by Act No. 7379 and enforced on December 1, 2005 and Article 34 of the amended Labor Standards Act, “the retirement benefit scheme that an employer pays to retired workers shall be governed by the Act on the Guarantee of Workers’ Retirement Benefits; (c) so, in cases where an employer fails to pay retirement allowances to workers within 14 days from the date on which the ground for payment occurred after the enforcement date of the aforementioned Act, the Labor Standards Act shall not apply, but the Guarantee
(1) The court below's decision that applied the Labor Standards Act to the unpaid portion of retirement allowance for workers H, N, and P [Article 1, 2, and 5] among the facts charged in this case is erroneous in the application of the Act and subordinate statutes, since only the name of the crime and the applicable provisions of the Act are different, and there is no possibility that the same as the facts charged itself and the exercise of the defendant's right to defense may not result in a substantial disadvantage. Therefore, the court below's decision cannot be maintained in this respect.
3. Accordingly, the judgment of the court below is erroneous for the above ex officio reversal.