Article 10 of the Labor Standards Act, the meaning of "business or workplace which ordinarily employs not less than five workers" under the proviso of Article 1 of the Enforcement Decree of the same Act and the criteria for judgment thereof.

Of Article 10 of the Labor Standards Act and proviso of Article 1 of the Enforcement Decree of the same Act, the term "business or workplace which ordinarily employs not less than five workers at a regular time" means a situation, and whether a certain business or workplace employs not less than five workers at a regular time shall be objectively determined by social norms. In this case, the term "worker" shall be a worker as provided in Article 14 of the Labor Standards Act, even if there is less than five workers at a time, and if there is more than five workers at a regular time, the term "business or workplace which employs not less than five workers at a regular time" shall be applied to the Labor Standards Act, and it shall be reasonable in light of the fundamental spirit of the Labor Standards Act, which shall include a seasonal or a certain period of business (or a workplace).

Articles 10 and 14 of the Labor Standards Act, proviso to Article 1 of the Enforcement Decree of the Labor Standards Act

Defendant

Prosecutor

Seoul Criminal Court Decision 86No4372 delivered on September 16, 1986

The non-guilty portion of the judgment of the court below shall be reversed, and that part of the case shall be remanded to Seoul Criminal District Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below, after compiling the evidences, found the defendant's indoor decoration work at the request of the non-indicted 1, Kim Jong-su and Hong-style while running the indoor decoration work, employs the non-indicted Mag-ro as a person in charge of the above indoor decoration work, and let the rest of the defendant except the defendant's direct employees, from among the other written indictments, employ the above Kim Gg-ro through the above Kim G-ro as necessary at that time. The above figures were employed on a daily basis and continued work, not on a fixed basis, but on an increase or decrease of the number of workers according to the needs of the work, and on the other hand, there is no other evidence that the above parts were employed by the defendant for the above multiple decoration work, and on the other hand, there is no further need to recognize that the above parts were employed for 20 days from the above date to the above 7th day of the work, and there is no other evidence that the above parts were employed for 20 days from the above date to the above 7th day of the work.

However, the meaning of "business or workplace which ordinarily employs five or more workers" under Article 10 of the Labor Standards Act and the proviso of Article 1 of the Enforcement Decree of the same Act, which prescribes the scope of the application of the Labor Standards Act, is "any business or workplace which employs five or more workers at a regular time," and whether a certain business or workplace employs five or more workers at a regular time shall be objectively determined by social norms. However, even if there are cases where the number of workers at a time is less than five, it shall be deemed to be more than five in terms of the situation. In this case, the "worker" is a worker stipulated in Article 14 of the Labor Standards Act, and even if there are five or more workers at a business or workplace, including those workers, if there are five or more workers at a regular time, it shall be subject to the application of the Labor Standards Act, and it shall be reasonable in light of the fundamental spirit of the Labor Standards Act.

Nevertheless, the court below concluded that daily workers employed by the defendant could not be included in the regular workers in its ruling with the opposite intent to the contrary, there is an error of misapprehending the legal principles on the business employing five or more regular workers under Article 1 of the Enforcement Decree of the Labor Standards Act, or failing to exhaust all necessary deliberations, and there is a ground for appeal.

Therefore, the non-guilty portion of the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Man-hee (Presiding Justice)