2020 oldest 764 Revocation of a disposition in violation of the Labor Relations Act

A

Head of the Busan Regional Employment and Labor Agency

September 23, 2020

October 28, 2020

1. The instant lawsuit shall be dismissed.

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

The disposition that the Defendant rendered on April 21, 2020 against the Plaintiff in violation of the Labor Relations Act (Article 9 of the Act on the Guarantee of Workers' Retirement Benefits) shall be revoked.

1. Case history

A. The Plaintiff is operating C&A in Haan-gun, Gyeongnam-gun.

B. From March 1, 2009 to November 14, 2019, D submitted a written petition to the Defendant on December 16, 2019 on the ground that the Plaintiff did not pay retirement allowances.

C. On April 21, 2020, the Defendant determined that the Plaintiff was guilty of violating the Act on the Guarantee of Workers' Retirement Benefits as a result of internal investigation on the petition case, and notified the Plaintiff of an order for correction of the unpaid amount of KRW 14,541,844 of retirement allowance through the prosecutor’s internal investigation, and the Plaintiff may be investigated by the labor inspector in charge (special judicial police officer) in case of non-compliance (hereinafter “instant order for correction”).

[Reasons for Recognition] Unsatisfy, Gap evidence 4, Eul evidence 1, 2, and 3, and the whole pleadings

2. The plaintiff's lawsuit of this case and the defendant's defense prior to the merits

The plaintiff asserts that D, which entered into a contract for the supply of the consignment, is not a worker who provided labor as subordinate to the plaintiff, and the defendant asserts that the corrective instruction of this case is not subject to appeal litigation because it is merely an administrative guidance, since D's intent to refuse conditional punishment due to the violation of the Act on Guarantee of Workers' Retirement Benefits due to the failure to pay retirement allowances corresponding to the crime of non-prosecutions, was conducted for the purpose of providing an opportunity to resolve problems autonomously based on Article 44 and attached Table 3 of the Labor Inspector Work Regulations, etc.

3. Determination

Whether a certain act of an administrative agency can be a subject of an appeal shall not be determined abstractly or generally, and an action shall be determined individually, taking into account the content and purport of the relevant Act 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 rule of law administration, and the attitude of interested parties with the administrative agency related to the pertinent act (see, e.g., Supreme Court Decision 2010Du7321, Jun. 10, 201). An act that does not cause direct legal change in the legal status of the other party or other interested parties, such as acts inside the administrative agency, intermediation, solicitation, and de facto notification, is not subject to appeal litigation (see, e.g., Supreme Court Decisions 2008Du3500, Apr. 24, 2008; 2014Du43974, Mar. 12, 2015).

In this case, Article 44(2) of the Regulations on the Management of Labor Relations (Ministry of Employment and Labor Directive No. 291, August 30, 2019), which provides that a supervisor shall instruct the employer in writing to take corrective measures with respect to the matters found in the course of performing his/her duties, such as the handling of reports, and understanding of labor trends, among the criteria for the measures against violations set forth in Tables 3 and 4, and that the employer shall immediately prepare a report and initiate an investigation if he/she fails to comply with the deadline. In attached Table 3, the above order shall be issued within the corrective period set out in the column for the measure to be taken within the scope of the measure to be taken. If the correction is completed within the deadline, the report shall be filed within the deadline, and if the correction is not made within the deadline, the investigation shall be commenced after reporting the offender, and if the victim explicitly expresses his/her wish not to punish due to the crimes of non-compliance with the intention of the victim, the matters related to the filing of a petition case or the

In addition to the above provision, the above provision on labor inspector's business should not be effective as a legal order that changes the legal status of the other party to the business affairs unless otherwise delegated by the law. Even if the other party does not comply with the corrective order based on the above provision, the other party is subject to investigation or criminal trial under the guarantee of procedural rights pursuant to the criminal justice procedure, so it does not receive direct re-adjudication or punishment without such process, but does not change the result of the above investigation or criminal trial depending on the cancellation of the corrective order. In addition, the legal effect of the corrective order does not lead to the plaintiff's duty to pay retirement allowance due to the legal effect of the corrective order, and if there is a dispute between the parties, the existence of the obligation should be decided by the fact-finding and the application of the law related to the civil trial, etc., and the corrective order in this case is not only a kind of administrative litigation order that provides the other party with an opportunity to correct unlawful matters and causes changes in the legal status of the other party to the criminal case, and it cannot be seen as a kind of administrative order to correct the dispute.

Therefore, since the corrective order of this case does not fall under a disposition which is subject to appeal litigation, the lawsuit of this case is unlawful due to the deficiency of the subject matter, and the defendant's prior defense pointing this out is with merit.

Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

Judges Kim Gin-ju