2020Da296321 Wages

Plaintiff

Samduk Construction Co., Ltd.

Jeju District Court Decision 2020Na11407 Decided November 11, 2020

July 8, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 44-2 of the Labor Standards Act provides that where a subcontractor who is not a construction business operator under the Framework Act on the Construction Industry is unable to pay wages to workers employed by the subcontractor, an immediate upper tier contractor of the subcontractor shall be jointly and severally liable for the payment of wages to workers employed by the subcontractor. Article 109 of the same Act provides that a immediate upper tier contractor shall be punished against the subcontractor who violates this provision. This purport is to impose liability on the subcontractor for an erroneous act that causes an abstract risk as to the subcontractor’s failure to pay wages by subcontracting construction works to a person whose financial power, etc. is not verified because the immediately upper tier contractor was not registered for the construction business.

Accordingly, a direct upper-tier contractor subject to Article 44-2 of the Labor Standards Act, unlike the case of Article 44 of the Labor Standards Act, assumes the above responsibilities due to a subcontractor’s failure to pay wages even though not directly attributable to himself/herself, and a subcontractor is also exempted from liability where a subcontractor performs a duty to pay wages. Ultimately, if a subcontractor is awarded a contract at least twice in a construction business and a subcontractor who is not a construction business fails to pay wages to workers employed by the subcontractor, the direct upper-tier contractor of the subcontractor is jointly and severally liable with the subcontractor regardless of whether there is a cause attributable to himself/herself or whether the subcontractor has paid the price to the subcontractor (see, e.g., Supreme Court Decision 2018Do9012, Oct. 31, 2019).

Meanwhile, if there is a ground for dispute as to the existence of the obligation to pay wages, etc., the employer shall be deemed to have a reasonable ground for failing to pay such wages, etc. so it is difficult to recognize that the employer had an intention to pay such wages, etc. (see, e.g., Supreme Court Decision 2007Do1539, Jun. 28, 2007). In cases of a direct contractor jointly and severally liable for payment of wages pursuant to Article 44-2 of the Labor Standards Act, if there are reasonable grounds for failing to pay such wages, etc. in light of overall circumstances, if the intention to commit a violation of Articles 44-2 and 109 of the Labor Standards Act is not recognized, and thus, such circumstance does not affect the obligation to pay wages itself.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Defendant, a construction business operator under the Framework Act on the Construction Industry, re-subcontracted part of the subcontracted construction work to the Nonparty, who is not a construction business operator under the Framework Act on the Construction Industry.

B. However, while the defendant and the non-party asserted that the defendant company paid the construction price in excess of the construction price, the non-party asserted that the payment remains considerably in excess of the construction price.

C. The Plaintiff et al., who was employed by the Nonparty and worked at the site of the said panel construction work, filed a petition with the Defendant’s representative director on the ground that he/she failed to perform his/her duty to pay wages as an immediate contractor. The prosecutor, on the ground that it is difficult to readily conclude that he/she had the intention to

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine as to Article 44-2 of the Labor Standards Act, failing to exhaust all necessary deliberations, or by violating the rules of evidence, in so determining, contrary to what is alleged in the grounds of appeal, inasmuch as the Plaintiff is liable for payment of wages not paid by the Nonparty as the Nonparty’s direct contractor.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Tae-tae, Counsel for the defendant

Justices Cho Jae-chul

Justices Min You-sook

Justices Lee Dong-won