[1] In a case where there is a ground for dispute as to the existence of the obligation to pay wages, etc., whether the employer can be found to have the intent to commit the crime of Articles 36 and 109(1) of the Labor Standards Act (negative), and the standard for determining whether there is any ground for dispute as to the existence and scope of the obligation

[2] In a case where the Defendant, who operates a transportation company Gap, did not pay retirement allowances for the retired worker Eul within 14 days from the date on which the cause for payment occurred, and was prosecuted for violating the Labor Standards Act, the case holding that the judgment below which found the Defendant guilty on the ground that there is no ground for dispute as to the existence of the obligation to pay retirement allowances, and it cannot be readily concluded that there was an intentional act in violation of Articles 36 and 109 (1) of the

[1] In a case where there are grounds for dispute over the existence of the obligation to pay wages, etc., it shall be deemed that there exists a considerable reason for the employer to not pay wages, etc., and it is difficult to find that the employer had an intention to commit a crime of Article 36 or 109(1) of the Labor Standards Act. Whether there is a ground for dispute as to the existence and scope of the obligation to pay wages, etc. should be determined in light of all the circumstances at the time of dispute over the grounds for the employer’s refusal of payment, the grounds for the employer’s obligation to pay wages, the organization and size of the company operated by the employer, the purpose of business, and the existence and scope of the obligation to pay wages, etc., and it shall not be readily concluded that the employer has the intent

[2] In a case where the defendant, who operates a transportation company Gap, did not pay retirement allowances of retired workers Eul within 14 days from the date of occurrence of the cause for payment without an agreement on the extension of the payment deadline, and was prosecuted for violation of the Labor Standards Act, the case held that the court below erred in the misapprehension of legal principles as to the defendant's intentional act in violation of Article 36 (1) of the Labor Standards Act, on the ground that the defendant did not object to the difference between the statutory retirement allowances and the amount already paid after interim settlement in the related civil cases, but Eul did not object to the interim settlement of retirement allowances, and the other workers did not object to the interim settlement of retirement allowances, and the period of non-regular work entrusted with the interim settlement of retirement allowances for the six months of Eul did not coincide with the previous labor relations, and therefore, it can be concluded that there was no ground to suspect the existence of the obligation to pay retirement allowances between the defendant and the defendant in violation of Article 109 (1) of the Labor Standards Act.

[1] Articles 36 and 109(1) of the Labor Standards Act / [2] Articles 36, 109(1) of the Labor Standards Act, Articles 9 and 31 of the Guarantee of Workers' Retirement Benefits Act

[1] Supreme Court Decision 2007Do1539 Decided June 28, 2007 (Gong2007Ha, 1212), Supreme Court Decision 2007Do4171 Decided August 23, 2007 (Gong2007Ha, 1510)

Defendant

Defendant

Attorney Lee Jin-ok

Incheon District Court Decision 2010No1638 Decided October 22, 2010

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. If there is a ground for dispute as to the existence of the obligation to pay wages, etc., it shall be deemed that there is a considerable reason for the employer to not pay the wages, etc. Therefore, it is difficult to recognize that the employer had the intention to commit a crime of violating Articles 36 and 109(1) of the Labor Standards Act. Whether there is a ground for dispute as to the existence and scope of the obligation to pay wages, etc. shall be determined in light of the reason for the employer's refusal of payment, the ground for such obligation, the organization and size of the company operated by the employer, all other matters such as the purpose of the business, and all other circumstances at the time of dispute as to the existence and scope of the obligation to pay wages, etc. Then, it shall be determined ex post facto by recognizing the employer's civil liability to pay wages, and it shall not be determined that the employer has the intention to commit a crime of Articles 36 and 109(1) of the Labor Standards Act against the employer.

2. The summary of the facts charged in the instant case is that “the Defendant is an employer who runs the transportation business by ordinarily employing 45 employees while operating the route of “non-indicted 1 Co., Ltd.” located in Yeonsu-gu Incheon Metropolitan City (number omitted). From October 4, 2003 to September 14, 2008, non-indicted 2’s retirement allowance of 1,620,484 won was not paid within 14 days from the date on which the cause for the payment occurred without agreement between the parties on the extension of the payment date.”

3. According to the reasoning of the judgment of the court below and the record, Nonindicted 2 had been working for Nonindicted 1 Co. 2, 203 to 20.2, 208 on the grounds that it had been declared as retirement allowance of 1,00,000 won on the ground that it had not been employed for 2,000,000 won for 2,000 won for 1,000 won for 2,000 won for 2,000 won for 2,000 won for 2,000 won for 2,000,000 won for 2,000 won for 1,000 won for 2,000 won for 2,000 won for 2,000 won for 2,00 won for 2,00 won for 2,000 won for 2,00 won for 1,000 won for 2,000 won for 3,000 won for 2,000 won.

4. We examine the above facts in light of the legal principles as seen earlier.

In related civil cases, it is confirmed that ○○ Transportation had an obligation to pay retirement allowances equivalent to 1,620,484 won, which is the difference between 8,507,180 won and 6,886,696 won paid in interim settlement of accounts with respect to Nonindicted Party 2. However, Nonindicted Party 2 did not raise any objection at the time of interim settlement of accounts of retirement allowances, and rather requested payment to the company if the interim settlement of accounts was delayed, other workers did not raise any objection to the interim settlement of accounts of retirement allowances of the company, and Nonindicted Party 2 did not raise an objection to the interim settlement of accounts of retirement allowances of the company. From March 15, 2008 to September 14, 2008, it can be concluded that there is considerable reason to conclude that the Defendant had no obligation to pay the retirement allowances to the Defendant under Article 10 of the Labor Standards Act. Accordingly, it can be concluded that there is no reason to conclude that the Defendant had no obligation to pay the above interim settlement of accounts of retirement allowances.

Nevertheless, the lower court found the Defendant guilty of the instant charges by emphasizing solely on the circumstance that the agreement on interim retirement allowance in force between the Defendant and Nonindicted 2 cannot be deemed to exist. In so doing, the lower court erred by misapprehending the legal doctrine on the intent to commit the instant crime under Articles 36 and 109(1) of the Labor Standards Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)