(영문) 서울고등법원 2015.8.20. 선고 2015누34474 판결

Defendant B Branch of the Seoul Regional Employment and Labor Agency (hereinafter only referred to as Defendant B Branch Head) shall revoke the notification of the Plaintiff on June 15, 2012 that the payment of wages and business suspension allowances was not made. Defendant B Branch Head of the Seoul Regional Employment and Labor Agency (hereinafter referred to as the “Defendant B Branch Head”) paid to the Plaintiff the amount of KRW 7,650,000, the Defendant Republic of Korea to KRW 100,000,000, and each of the said money to the Plaintiff, 5% per annum from the day following the date of service of a copy of the purport of the claim and the application for change of the cause as of March 26, 2014 to the date of the decision, and 20% per annum from the following

2. Purport of appeal

Of the judgment of the first instance, the part against the Plaintiff seeking revocation and payment is revoked as follows. The notification of non-verification of the wage and suspension allowance as of June 15, 2012 rendered to the Plaintiff by the head of the branch office of the first instance shall be revoked. As to the Plaintiff’s KRW 50,00,000 and this, Defendant Republic of Korea shall be limited to the Plaintiff’s KRW 50,000,000 and the service date of a copy of the application for alteration of the purport of the claim and the cause thereof as of March 26, 2014, and 5% per annum from the day after the day after the date of the delivery of the application for alteration to the ground to the Plaintiff, and 20% per annum from the next day to the full payment date of the Plaintiff’s claim (the first instance judgment dismissed all the Plaintiff’s claim. The Plaintiff filed an appeal regarding the part of the judgment of the first instance as to the claim for the payment of interest in arrears, and the scope of judgment of this court is limited to

Reasons

1. Quotation of the first instance judgment

The reasoning for the court’s reasoning on this case is as follows, except for the modification of the part of the judgment of the court of first instance as follows and the addition of the judgment on the matters asserted by the plaintiff in the court of first instance under paragraph (2), it is identical to the reasoning of the judgment of the court of first instance. Thus, the evidence submitted in the court of first instance and the main text of Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act are cited as it is (in light of the evidence submitted in the court of first instance and the evidence additionally submitted by the plaintiff, there is no other evidence to acknowledge this differently without

○, 3rd page of the first instance judgment, “The retirement date of the Plaintiff shall be deemed to be March 25, 2008,” and “the head of Defendant B shall be deemed to be the head of Defendant B’s branch office, respectively, and the “the retirement date of the Plaintiff shall be deemed to be March 24, 2008,” and “the head of Defendant B” shall be deemed to be the head of Defendant B’s branch office.

The public prosecutor belonging to the Seoul Southern District Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor's Office of Public Prosecutor.

○ The witness 0 and the witness 0 of P's testimony of the first instance court 14 are changed to the witness 0's testimony of the first instance court 7.

2. Determination on the additional argument in the trial

A. The plaintiff's assertion

At the time of the instant disposition, the head of Defendant B did not follow the procedures such as setting and publicly announcing the disposition standards prescribed in Articles 20, 21, and 22 of the Administrative Procedures Act, and prior notice or hearing opinions about the grounds for disposition. Although the Plaintiff actively requested the summons of the business owner and the examination of the nature of the company belonging to other employees belonging to the instant company, the instant disposition was unlawful. In addition, the Plaintiff’s intentional act or negligence should not be recognized as a public official who did not comply with the above statutory procedures and rejected the Plaintiff’s request.

B. Determination

Article 20(1) of the Administrative Procedures Act provides that an administrative agency shall determine and publicly announce the necessary disposition standards to the extent possible in light of the nature of the relevant disposition, and Article 20(2) of the Administrative Procedures Act provides that the publication of the disposition standards may not be made in cases where it is considerably difficult in light of the nature of the relevant disposition or where there are reasonable grounds deemed to significantly undermine the safety and welfare of the public. The purport of imposing the duty of the administrative agency to specifically determine and publicly announce the

By allowing the other party to a disposition to make it possible to predict the outcome of the disposition and thereby securing fairness, transparency, and reliability of the administration. However, in a case where the disposition criteria are publicly announced in advance, it may be more appropriate for the safety and welfare of the public, rather than for the flexible disposition to take account of individual circumstances in a specific case by granting discretionary power to the administrative agency within a certain scope. In such a case, it may be said that the disposition criteria may be separately published or generally announced in accordance with the above paragraph (2) (see, e.g., Supreme Court Decision 2006Du9283, Apr. 24, 2008). In addition, Article 21(1) of the Administrative Procedures Act provides that, in a case where a disposition is to impose an obligation on the party or restrict rights and interests, the administrative agency may not, in advance, impose an order of refusal on the party concerned, including the title or title of the disposition, the facts and legal grounds for the disposition to be taken, the purport that the administrative agency may submit its opinions and opinions, and the name and address of the opportunity for submission of the party concerned.

In light of the Wage Claim Guarantee Act, it cannot be deemed that the criteria for disposition concerning the instant disposition were not established and publicly announced, and the fact that there was no establishment and public announcement of the criteria for disposition, barring any special circumstance, it is difficult to readily recognize that there was a direct infringement on the other party’s specific interests in individual dispositions. The instant disposition cannot be deemed a disposition imposing an obligation on the party directly or restricting his rights and interests. Therefore, even if the head of Defendant B did not give the Plaintiff an opportunity to present his opinion, or did not give prior notice of the grounds for the disposition, etc. when rendering the instant disposition, it cannot be deemed unlawful. Furthermore, it cannot be deemed that the labor inspector under relevant Acts and subordinate statutes has a duty to summon the Plaintiff at the Plaintiff’s request or to cross-examine the employees of the instant company. Accordingly, the Plaintiff’s assertion is without merit, on the ground that the instant disposition was unlawful, or the instant labor inspector violated the relevant Acts and subordinate statutes due to

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.