(영문) 서울행정법원 2010.9.17. 선고 2010구합22092 판결

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in Gap evidence Nos. 1, 2, 3-1, 2, and 4-4.

A. The Plaintiff is a non-profit private organization that mainly works for protecting the rights and interests of persons with disabilities and community sports in Gwanak-gu in Seoul Special Metropolitan City.

B. D entered into an employment contract with the Plaintiff on September 20, 2007, and worked as disabled assistants from October 5, 2007 to February 4, 2010.

C. On March 4, 2010, D filed a petition with the Defendant to refuse to pay retirement allowances. On April 16, 2010, the Defendant issued a corrective order to the effect that D’s failure to pay retirement allowances of KRW 2,327,333 to the Plaintiff within 14 days from the date of retirement without any extension of the payment due date, and that D’s failure to pay retirement allowances of KRW 2,327,333 to the Plaintiff was confirmed (hereinafter “instant corrective order”).

2. The plaintiff's assertion

An assistant for disabled persons is not a worker prescribed by the Labor Standards Act, there is no allowance payment item under the relevant Acts and subordinate statutes, and the plaintiff does not have the right to pay a retirement allowance to the assistant for disabled persons, and the corrective order of this case is unlawful on

3. Judgment on the defendant's main defense

A. The defendant's main defense

As a result of investigating the said petition case filed by D, the Defendant deemed that the Plaintiff was suspected of violating the Labor Standards Act, and, prior to performing his duties as a judicial police officer, issued the instant corrective order with the aim of soliciting correction of the violation in accordance with the labor inspector labor inspector’s work regulations. The instant corrective order is limited to the purport of performing duties as a judicial police officer upon suspicion of the violation of the Labor Standards Act in the event that the Plaintiff fails to comply with it, and it does not have any legal effect on the Plaintiff due to the instant corrective order. Therefore, the instant corrective order does not constitute an administrative disposition subject to appeal

B. Determination

1) The term "administrative disposition", which is a subject of an appeal litigation, means an act of an administrative agency under public law, which causes direct change in the legal status of the other party and other persons concerned, such as ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes with respect to a specific matter, or giving rise to other legal effects, and an act which does not directly cause legal change in the legal status of the other party and other persons concerned, such as actions, intermediation, solicitation, and de facto notification within the administrative authority, is not subject to an appeal litigation (see, e.g., Supreme Court Decision 78Nu379

2) In full view of the following circumstances, it is reasonable to deem that the instant corrective order does not constitute an administrative disposition that is subject to an appeal litigation. As such, the instant lawsuit seeking the revocation of the instant corrective order is unlawful.

A) In a case where D, which entered into a contract for a disabled assistant with the Plaintiff, constitutes a worker under the Labor Standards Act, the Plaintiff is obligated to pay retirement allowances to D as a matter of course pursuant to Article 36 of the Labor Standards Act, and the Plaintiff is not obligated to pay retirement allowances to D upon the instant corrective order.

B) While investigating the said petition case filed by D, the Defendant concluded the said petition case in accordance with Article 40 and attached Table 3 of the Labor Inspector’s Office Regulations, or reported the place of criminal investigation before commencing the investigation. In light of the background and content of the instant corrective order, it is reasonable to deem that the instant corrective order was given to the Plaintiff prior to the Defendant’s criminal case, in order to give the Plaintiff an opportunity to voluntarily correct the violation of the Labor Standards Act.

C) Even if a measure following the instant corrective order is not implemented within the deadline for correction, if the Defendant, as a judicial police officer, deemed that there is a suspicion of violation of the Labor Standards Act by starting an investigation as a judicial police officer, he/she should transfer the Plaintiff to the prosecution, and the existence of a fact of violation of the Labor Standards Act is only a dispute under the criminal procedure. The Plaintiff is not subject

D) However, Article 116(1) of the Labor Standards Act provides that a fine for negligence shall be imposed if a labor inspector fails to comply with a labor inspector’s request for report, submission of books and documents, but in light of the constitutional principle that a labor inspector is not forced to make a statement unfavorable to him/her, it shall not be subject to the imposition of a fine for negligence by refusing to comply with an investigation while performing his/her duties as a judicial police officer. Therefore, the imposition of a fine for negligence is limited to the case where the labor inspector’s above request has the nature of administrative action. However, in light of the circumstances leading the Defendant to order the Plaintiff to correct the measure regarding the payment of retirement allowances and demanding the Plaintiff to submit the result of the measure, it is difficult to view that the Defendant’s above demand has the nature

E) Ultimately, the instant corrective order cannot result in a direct change in the Plaintiff’s specific rights and obligations.

4. Conclusion

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