Defendant

Defendant

Mazyn-ray

Law Firm Gyeong-Gyeong, Attorney Choi Woo-soo et al., Counsel for the defendant-appellant

Busan District Court Decision 2010 High Court Decision 334 Decided December 15, 2010

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 700,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

The Defendant agreed with the Nonindicted Party to pay monthly allowances including retirement allowances, and accordingly, the Defendant paid monthly allowances including retirement allowances to the Nonindicted Party, so the Defendant could not be deemed to have paid retirement allowances to the Nonindicted Party. However, the lower court found the Defendant guilty of the facts charged in the instant case. Therefore, the lower court erred by misapprehending the facts and adversely affecting

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal by the defendant was made ex officio, the prosecutor applied for amendments to the indictment with respect to the defendant as stated in Article 109(1) and Article 36 of the Labor Standards Act to “Article 31 and Article 9 of the Guarantee of Workers’ Retirement Benefits Act”, and this court permitted this and changed the subject of the judgment. Thus, the judgment of the court below was no longer maintained.

B. Error of mistake

Meanwhile, despite the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts still remains in existence even after the amendment of a bill of indictment, so if there are grounds for dispute as to the existence and scope of the obligation to pay wages, it shall be deemed that there is considerable reason for the employer to refuse to pay the wages. Thus, it is difficult to deem that the employer has intentionally committed the violation of the obligation to pay the wages within the fixed date of the Labor Standards Act. However, as long as the labor contract remains in existence, there is no possibility that the right to claim the payment of retirement allowances may arise only with the requirement of termination of the labor relationship, the right to claim the payment of retirement allowances shall not be effective as retirement allowances under Article 34 of the Labor Standards Act, even if a certain amount of money is paid on the monthly wage or daily wage paid, it shall not be effective as the payment of retirement allowances under Article 34 of the Labor Standards Act as well as on the monthly wage or daily wage paid as the agreement to be paid to the employer including the retirement allowances under Article 34 of the Labor Standards Act, which has no legal effect.

According to the health stand of this case, according to the evidence duly adopted and examined by the court below, the defendant was a business operator engaged in the automobile maintenance service business, and the non-indicted was employed by the defendant and retired as of November 10, 2007, and the non-indicted was not paid 3,386,658 won of retirement allowance from the defendant while retired. Meanwhile, the non-indicted was employed by the defendant, and the non-indicted was paid every month for the amount including the above money in the form of retirement allowance.

In light of the above legal principles and facts, even if the defendant paid retirement allowances to the non-indicted person each month including the money in the name of the retirement allowance, such agreement does not take effect under the legal principles as seen earlier, and thus, it cannot be deemed that the defendant paid retirement allowances to the non-indicted person. ② Even if the defendant paid the money to the non-indicted person as the monthly retirement allowance, as such, in order to make the non-indicted person effective payment of retirement allowances according to the effective interim settlement procedure under the Guarantee of Workers' Retirement Benefits Act (in order to make the non-indicted person an interim settlement of retirement allowances, the first demand of the worker who demanded interim settlement of retirement allowances must be explicitly, and second, the Guarantee of Workers' Retirement Benefits Act allows the non-indicted person to make interim settlement of retirement allowances only for the period of continuous employment, and the defendant cannot be viewed as having made advance payment of retirement allowances after the interim settlement of accounts based on the premise that the non-indicted person would continue to work in the future. Third, the defendant cannot be viewed as having made payment of retirement allowances under the condition of set-off 20 under the labor contract.

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio in accordance with Article 364(2) and (6) of the Criminal Procedure Act as the above grounds for ex officio reversal, and it is again decided as follows.

The summary of the facts constituting an offense and evidence recognized by this court is as shown in each corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 31 and 9 (Selection of Fine)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Hwang Young-soo (Presiding Judge)