The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

The Defendant is a user who engages in transportation business, etc. using 1,650 full-time workers as the representative director of D Co., Ltd. (hereinafter “instant company”).

Work hours shall not exceed 40 hours a week, excluding recess hours, and may be extended only within 12 hours a week, if there is an agreement between the parties concerned.

From January 5, 2017 to March 31, 2017, the Defendant: (a) employed by the instant company and operated an urban bus on the E Station section of E Station-F Station; (b) had G workers work for 59.5 hours in total per share; and (c) had the statutory overtime work for 12 hours in excess of 7.5 hours.

2. Based on its stated reasoning, the lower court reversed the first instance judgment that found the Defendant not guilty of the charges and convicted him/her on the ground that the Defendant sufficiently proven that he/she had workers G worked for 59.5 hours in total per share.

3. However, the lower court’s determination is difficult to accept in light of the following circumstances.

Article 50(1) of the Labor Standards Act provides that work hours shall not exceed 40 hours a week, excluding recess hours, and Article 53(2) provides that work hours may be extended up to 12 hours a week upon agreement between the parties.

Work hours refers to the time when a worker provides labor under the direction and supervision of the employer, and the above provision intends to restrict the excessive work hours of the worker. Thus, the work hours referred to in the above provision refer to the actual work hours.

(See Supreme Court Decision 92Nu9766 delivered on November 24, 1992). On the other hand, recess hours refer to hours during which workers may freely use, under the employer’s direction and supervision during work hours.

Therefore, the worker is actually during the working hours.