Whether a person whose performance of duties as the representative director is suspended by a provisional disposition can be the subject of a violation of Articles 33 and 40 of the Labor Standards Act.

Since both contractual documents stipulated in Article 33 of the Labor Standards Act or wage ledgers stipulated in Article 40 of the Labor Standards Act are public documents of a company, if an actor intends to violate his/her duty to preserve and prepare such documents, it is the premise that the actor has been granted a legitimate authority to preserve and prepare such documents from the company. Thus, if he/she was appointed as a representative director of a company but the execution of his/her duties is suspended by the court's decision of provisional disposition and is appointed as a representative director, he/she cannot be the subject of a violation of Articles 33 and 40 of the Labor Standards Act even if he/she actually participated

Articles 33 and 40 of the Labor Standards Act

Defendant

Defendant

Gwangju District Court Decision 92No1495, 93No1006 delivered on September 16, 1994

The part of the judgment below on the violation of the Labor Standards Act is reversed, and that part of the case is remanded to the Panel Division of the Gwangju District Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below found the defendant guilty on the ground that the defendant, who was the representative director of the non-party company, was suspended from performing his duties by the court's decision of provisional disposition at the time of committing the crime, and therefore, in determining the grounds for appeal that the defendant cannot be the subject of the violation of the duty to preserve contract documents and the duty to prepare wage ledgers, since he does not fall under the employer prescribed by the Labor Standards Act, according to evidence, the defendant was found to have been actually in charge of the management of the above company

However, since contract documents stipulated in Article 33 of the Labor Standards Act or wage ledgers stipulated in Article 40 of the Labor Standards Act are all public documents of the company, if the actor has been granted legitimate authority to preserve and prepare such documents from the company in order to violate its duty to preserve and prepare them, the records of the register of the non-party company attached to the records reveal that the defendant was appointed as the representative director of the non-party company on August 1, 1991 and the defendant was suspended from performing his duty as the representative director on September 2 and September 6 of the same year before the crime was committed, and that he was appointed as the representative of the non-party. Thus, even if the defendant was actually involved in the management after the suspension of the representative director's duty, it cannot be said that the defendant did not obtain legitimate authority from the company or obtained legitimate authority from the company on the preservation of contract documents and the preparation of wage ledgers. Thus, the court below erred in the misapprehension of legal principles as to whether the evidence submitted by the court of first instance contains legitimate authority as to the defendant.

Therefore, without examining the remaining grounds of appeal, the part concerning the violation of the Labor Standards Act among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)