Defendant

Defendant

Statch and leather

Law Firm (LLC) LLC, Attorneys Sung Sung-Gyeong et al.

Suwon District Court Decision 2008 Godan38 Decided September 4, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of 200,000 won.

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

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

Of the facts charged in this case, the non-payment of the pre-paid dismissal allowance shall be acquitted.

1. Summary of grounds for appeal;

The judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of legal principles.

(a) The fact that retirement allowances are unpaid;

Nonindicted 1 (Nonindicted Party 1 in the Supreme Court’s judgment) voluntarily retires on August 18, 2007, which was before the first anniversary of the term of employment contract, and the continuous employment period is less than one year, and thus, it is not eligible for retirement benefits.

B. The fact that monthly allowances are not paid

Since Nonindicted 1 used all the 11-day paid leave during the working period, it does not constitute grounds for the payment of monthly allowances.

(c) the fact that annual allowances are not paid;

Since Nonindicted 1’s continuous work period is less than one year, it is not subject to annual leave. Even if Nonindicted 1’s household work is recognized as having worked until August 22, 2007, the annual leave is given from the next day after one year, so Nonindicted 1’s annual leave does not constitute subject to annual leave.

(d) A point of payment of refund for year-end settlement;

“Money and valuables of a body” under Article 36 of the Labor Standards Act refers to all money and valuables arising from the termination of a labor relationship. The refund for year-end settlement is not derived from the termination of a labor relationship, and is not included in the application of the above provision. Even if the above provision is included in the application of the above provision, Nonindicted Party 1 is obligated to return KRW 328,00 for 4 days due to the failure to work for 4 days during the agreed labor period, and there is no refund for year-end settlement to be paid to Nonindicted Party 1 if the above wage refund claim and the refund for year-end settlement offsets the above claim for 31,7

E. Payment of the advance notice of dismissal allowance

Since it is not a contract for extension at the time of termination of the annual salary contract, it is not a dismissal of Nonindicted 1, it is not a matter of payment of advance notice of dismissal allowance.

2. Determination

A. Whether an employment contract between the Defendant and Nonindicted Party 1 has no fixed term

Even in a case where an employee and an employer prepare a written labor contract fixing a period of time when concluding a labor contract, where it is deemed that a fixed period of time is merely a form of employment contract by comprehensively taking into account the content of the written contract, the motive and circumstances leading up to the execution of the labor contract, the purpose and genuine intent of the parties concerned, practices regarding the conclusion of the same kind of labor contract, the rules on the protection of workers, etc., notwithstanding the terms and conditions of the written contract, it shall be deemed that the written contract was concluded without a fixed period of time. However, if the above circumstances are not acknowledged, it is in principle that the written contract, which is a disposal document, has a fixed period of time between the employee and the employer (see Supreme Court Decision 2005Du2247,

According to the evidence duly adopted and examined by the court below, the defendant entered into a labor contract with non-indicted 1 (Evidence 1: 24-25 pages of evidence records) with a specific period from August 23, 2006 to August 22, 2007 (Article 10 of the above employment contract provides that "the renewal of the contract: the next annual salary contract shall be renewed by the personnel committee assessed by the personnel committee). After running on August 18, 2007, the defendant recognized the expiration of the term of the employment contract and expressed his/her intention to refuse to renew the contract to the non-indicted 1 [the defendant is the document proving the contents of the employment contract sent to the non-indicted 1 on August 22, 2007 (Evidence 1:3: 28 pages of evidence record) are also "the case of notifying the termination of the term of the employment contract to the non-indicted 1, 207". In light of the above facts, even if the term of the employment contract is not extended by 206 days until the expiration date of the contract.

(b) The unpaid retirement pay;

According to the evidence duly adopted and examined by the court below, the defendant expressed his intention to refuse renewal to Non-Indicted 1 on August 18, 2007, and Non-Indicted 1 submitted a written petition to the Sung-nam Branch of the Sung-gu Labor Agency on August 21, 2007 and stated "the defendant dismissed without prior notice of dismissal" can be acknowledged. In light of the above facts of recognition, it is difficult to view that Non-Indicted 1 voluntarily resigned or terminated labor relations.

Rather, according to the facts found in the above A, the employment contract between the defendant and non-indicted 1 was terminated on August 22, 2007. Thus, the defendant's continuous employment period constitutes more than one year. Therefore, since the defendant is obligated to pay retirement allowances to non-indicted 1, this part of the defendant's assertion on the premise that the continuous employment period of the defendant is less than one year is less than one year is without merit.

(c) The fact that monthly or annual allowances are not paid;

An employer shall, in principle, determine the basic wages of workers and pay them in addition to various allowances based on such determination. However, in cases where an employer concludes a wage payment contract based on the so-called comprehensive wage system with the purport that the total amount of allowances is determined as monthly wages or daily wages or that the employee will work in consideration of the working hours, the form of work and the nature of work, etc. and without calculating the basic wages in advance, and that the employer shall pay a certain amount as allowances, if it is deemed that there is no disadvantage to the employee and that it is justifiable in light of all the circumstances (see Supreme Court Decision 2008Do5703, Sept. 11, 2008, etc.).

The evidence duly adopted and examined by the court below [In particular, according to the defendant and non-indicted 1's labor contract (Evidence No. 1, No. 24-25 pages of evidence record), a comprehensive wage contract was concluded with the defendant and non-indicted 1 setting the sum of monthly allowance, annual allowance, etc. as monthly wage. Since the comprehensive wage agreement is disadvantageous to workers or there is no evidence to find it unfair in light of all the circumstances, the above agreement is valid.

Therefore, this part of the facts charged on the premise that the defendant is liable to pay a separate monthly allowance and annual allowance for Nonindicted Party 1 constitutes a case where there is no proof of crime, and thus, the judgment of the court below which found the defendant guilty is erroneous in matters of law by misunderstanding the facts

(d) A point of payment of refund for year-end settlement;

(1) Whether a year-end refund is included in the application of Article 36 of the Labor Standards Act

Article 36 of the Labor Standards Act refers to all money and valuables to be reverted to an employee, regardless of the name, and since a year-end settlement refund is the money and valuables to be reverted to an employee, it shall be subject to the application of Article 36 of the Labor Standards Act (Provided, That this case’s year-end settlement refund is different from retirement pay, etc.). Therefore, the Defendant’s assertion that there is no obligation to pay a year-end settlement refund on the grounds of termination of labor relations

(2) Whether a set-off based on a wage refund claim that has been paid in excess is possible

According to the evidence duly adopted and examined by the court below, although the non-indicted 1 was deemed to have worked only on August 18, 2007 (to be Saturdays). On the other hand, according to the above evidence, the defendant concluded a labor contract of KRW 30 million with the non-indicted 1, and stated in the labor contract (No. 24-25 of the evidence record No. 1: He shall be subject to separate regulations, and there is no evidence to prove that there was an agreement on the deduction of wages in case of absence from office, and there was no other evidence to prove that the defendant agreed on the deduction of wages in the case of absence from office (the non-indicted 1 stated in the court below that the defendant would work until he was on August 18, 2007 and that the defendant would have worked on August 22, 2007 and that the defendant was paid wages exceeding Grade 1 of the non-indicted 4 on the premise that the defendant was paid for the last day of August 29, 2007).

E. Payment of the advance notice of dismissal allowance

The evidence submitted by the prosecutor alone is difficult to recognize that the defendant dismissed the non-indicted 1, and instead, as seen in the above paragraph (a) above, the defendant and non-indicted 1 entered into a labor contract between August 23, 2006 and August 22, 2007 with the term of the labor contract as the period of the contract, and the defendant expressed his intention to refuse the renewal to the non-indicted 1 on August 18, 2007.

Therefore, since this part of the facts charged premised on the Defendant’s dismissal of Nonindicted Party 1 constitutes a case where there is no proof of crime, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the entire judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The defendant, as the representative director of the non-indicted 2 corporation in Gwangju City (number omitted), is an employer who runs the wholesale and retail business by employing seven full-time workers;

A total of KRW 2,803,560, including Nonindicted 1’s retirement allowance 2,491,850, year-end settlement refund 31,710, which was worked from August 23, 2006 to August 22, 2007, did not pay KRW 2,803,560 within 14 days from the date of occurrence of each cause for payment, without any agreement on extension of the due date between the parties concerned.

Since the corresponding column of the judgment of the court below is the same as the corresponding column of the judgment below, it shall be quoted by Article 369 of the Criminal Procedure Act

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

Articles 109(1) and 36 of the Labor Standards Act, selection of fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Of the facts charged in the instant case, the fact that monthly or annual allowances are unpaid

A. Summary of this part of the facts charged

The defendant, as the representative director of the non-indicted 2 corporation in Gwangju City (number omitted), is an employer who runs the wholesale and retail business by employing seven full-time workers;

The above workplace did not pay KRW 1,796,960 in total, including KRW 980,160, annual allowances, annual allowances of KRW 816,800, which was worked from August 23, 2006 to August 22, 2007, within 14 days from the date on which the cause for payment occurred, without any agreement on the extension of the due date between the parties concerned.

B. Determination

This part of the facts charged shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under a case where there is no proof of crime as seen in the above reasons for reversal. However, inasmuch as the court found guilty of the non-payment of retirement allowance or refund for year-end settlement, it shall not be sentenced

2. The non-payment of the advance notice of dismissal allowance among the facts charged in this case

A. Summary of this part of the facts charged

The defendant, as the representative director of the non-indicted 2 corporation in Gwangju City (number omitted), is an employer who runs the wholesale and retail business by employing seven full-time workers;

When an employer intends to dismiss a worker, he/she shall give the worker a notice of dismissal at least 30 days, and when he/she does not give a notice of dismissal at least 30 days, he/she did not pay 2,307,500 won corresponding to the amount of ordinary wages for 30 days while dismissing a non-indicted 1 as of August 22, 2007, although he/she did not pay the ordinary wages for more than 30 days.

B. Determination

This part of the facts charged constitutes a case where there is no proof of crime as seen in the above reasons for reversal, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges in writing (Presiding Judge)