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Public-service advocates (National Ship)

Suwon District Court Decision 2007 High Court Decision 1055 Decided December 28, 2007

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

The representative of the branch of the Goyang-si Livestock Business Association is Nonindicted 1, and the defendant is not the representative or the actual manager, and is not the employer under the Labor Standards Act.

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

2. Determination

Article 112 and Article 36 of the Labor Standards Act are employers. Article 15 of the Labor Standards Act provides that the term “employer” refers to an employer, a person in charge of business management, or any other person who acts on behalf of an employer with respect to matters relating to workers. Here, the term “person who acts on behalf of an employer with respect to other workers” refers to a person who is responsible for business management and represents or acts on behalf of an employer with a comprehensive delegation from an employer for all or part of the business management, and “a person who acts on behalf of an employer with respect to other workers” refers to a person who is given certain authority and responsibility from an employer with respect to matters relating to the determination of working conditions, such as workers’ personnel, wages, welfare, labor management, etc., or orders, direction, or supervision of the business (see Supreme Court Decision 2005Do8364, May 11, 206).

According to the evidence duly admitted and examined by the court below, it is acknowledged that the representative of the Goyang Livestock Enterprise Branch (hereinafter “instant branch”) was non-indicted 1, but failed to attend the instant branch from June 2005 to leave the place of business and actually left the place of business, and the defendant was in fact operating the instant branch since he attempted to operate the office like employees until now. The office employees of the instant branch were six including the defendant, and the instant branch was operated with the membership fees paid by the union members as the principal revenue source, and the defendant was operating the instant branch as the principal revenue source, such as paying the union fees and paying expenses. Although the defendant was not delegated management delegation or certain authority and responsibility by the representative of the instant branch, as long as the defendant left the place of business and operated the workplace, the defendant did not err by misapprehending the legal principles as seen above, and therefore, did not err by misapprehending the legal principles of the Labor Standards Act.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Go Young-gu (Presiding Judge) Gangwon-gu (Presiding Judge)