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The judgment below
Part of acquittal shall be reversed.
Defendant shall be punished by a fine of two million won.
The above fine shall be imposed on the defendant.
Reasons
1. The lower court, on the ground that the Defendant violated the Act on Guarantee of Workers' Retirement Benefits among the facts charged in the instant case, found the Defendant not guilty of violating the former Labor Standards Act (wholly amended by Act No. 15108, Nov. 28, 2017), the lower court did not separately dismiss the Defendant.
However, the prosecutor appealed to the whole judgment of the court below, but did not regard the dismissal of the above reasons as grounds for appeal. In such a case, the dismissal of the grounds for appeal based on the principle of no appeal, along with the verdict of not guilty, shall be judged in the trial. However, this part already deviates from the object of the attack and defense between the parties and was virtually subject to the trial.
(see, e.g., Supreme Court Decision 2008Do8922, Dec. 11, 2008). Therefore, with respect to the dismissal of a public prosecution on the foregoing ground, the conclusion of the lower judgment is to be followed, and a separate judgment is not rendered in the trial.
2. With respect to the violation of the Labor Standards Act among the facts charged in the instant case, the Defendant is the representative of D and the damaged workers have retired under D, considering the fact that the Defendant, as a representative of D, takes charge of the management right of the company, and even if the Defendant did not work almost, the Defendant is liable to pay income tax refunds to the victimized workers as the representative of D, and thus, the Defendant is liable to pay income tax refunds to the victimized workers.
3. Where there are grounds for dispute as to the existence of the obligation to pay wages, etc., it is difficult to find that the employer had the intent to commit a crime of Articles 36 and 109(1) of the Labor Standards Act, since the employer has a substantial reason for not paying wages, etc., and whether there are grounds for dispute as to the existence and scope of the obligation to pay wages, etc.