Blave Unemployment Co., Ltd

Seoul Regional Labor Relations Commission

April 29, 2010

Seoul Administrative Court Decision 2008Guhap19598 Decided December 19, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 2.5 million against the Plaintiff on March 20, 2008 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On October 27, 2007, the Plaintiff was a corporation that operates a taxi transport business with 130 full-time workers employed in Yangcheon-gu Seoul Metropolitan Government (hereinafter omitted) on the ground that the Nonparty, an employee of the Plaintiff company, concluded a labor contract to pay all of the transport earnings to the Plaintiff company in accordance with the total-scale management system of taxi transport earnings, but did not pay part of the transport earnings.

B. On October 31, 2007, the Nonparty filed an application for remedy against unfair dismissal with the Defendant. Accordingly, in the case of the application for remedy against unfair dismissal pursuant to Section 2007, the Defendant issued an order to remedy the Nonparty’s restoration to his original position within 30 days from the date of receipt of the written judgment against the Plaintiff, and to pay the amount equivalent to the wages that the Plaintiff would have received if the Nonparty had ordinarily worked during the period of unfair disciplinary action or dismissal (as seen in Paragraph (d) above, the dismissal during the above disposition was not in question) and was subject to the above suspension of service and the disposition of dismissal on December 5, 2007 (as seen in Paragraph (d) above).

C. Although the instant remedy order was served on the Plaintiff on January 10, 2008, the Plaintiff did not pay the amount equivalent to the wages stipulated in the instant remedy order to the Nonparty not later than February 11, 2008, which was the due date stipulated in each of the instant remedy order, and the Defendant issued a disposition of imposition of KRW 5 million against the Plaintiff on March 20, 2008 on the ground that the Plaintiff failed to pay the amount equivalent to the wages under the instant remedy order.

D. Meanwhile, on January 18, 2008, the Plaintiff filed an application for reexamination on the instant remedy order with the National Labor Relations Commission, and the National Labor Relations Commission, on the grounds that the Plaintiff was dismissed, on April 21, 2008, dismissed the Nonparty’s application for remedy on the part of the instant remedy order and dismissed the Nonparty’s application for remedy on the grounds that there was no fact that the Nonparty was dismissed. However, on July 22, 2008, the Defendant decided to reduce the enforcement fine on the remedy order from KRW 5 million to KRW 2.5 million.

[Ground of recognition] A without dispute, Gap evidence 1, 2, 3-2, Gap evidence 13, Gap evidence 15-2, Gap evidence 17, Eul evidence 1-2, Eul evidence 2, 5 through 9, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Even though the Plaintiff notified the Nonparty that he would work in the Plaintiff Company after the instant remedy order was issued, the Nonparty did not comply with the order. Thus, the Plaintiff did not perform its duty of reinstatement in accordance with the instant remedy order.

(2) The Plaintiff was unable to calculate the amount of wages paid to the Nonparty due to the Nonparty’s non-party’s failure to work normally, and thus, the Plaintiff could not pay “amount equivalent to wages that could have been received if the Plaintiff had worked normally during the period of unfair disciplinary action or dismissal.” Therefore, the Plaintiff did not perform his duty to pay the amount equivalent to wages pursuant to the instant remedy order. In addition, the Nonparty, who filed a lawsuit to nullify dismissal, etc. with the Seoul Southern Southern District Court (2009Gahap11946), received a favorable judgment, and collected the execution clause from the Plaintiff’s bank account from October 28, 2007 to February 28, 2010 and collected KRW 16.8 million from the Plaintiff’s bank account. As such, the Plaintiff fulfilled its duty to pay the amount equivalent to wages pursuant to the instant remedy order.

(3) Therefore, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination on the first argument

In light of the above facts, the defendant only imposed the disposition of this case on the ground that the plaintiff did not pay the amount of wages to the non-party by the execution deadline stipulated in the relief order of this case, and it did not impose the disposition of this case on the ground that the non-party was not reinstated. Thus, this part of the plaintiff's assertion is without merit.

(2) Judgment on the second argument

(A) First, we examine whether the content of the instant remedy order is illegal or invalid because it is not specified.

However, Article 33(1) of the Labor Standards Act provides that an employer shall impose a non-performance penalty if the employer fails to comply with the order by the due date after receiving the order for remedy from the Labor Relations Commission. The imposition of such non-performance penalty is a kind of indirect compulsory performance under the administrative law that allows the employer, who fails to comply with the order for remedy in order to promptly remedy the worker who is the other party to the unfair labor practice and to ensure the effectiveness of the Labor Relations Commission’s order for remedy, and constitutes an indive administrative act that causes the payment of certain amount, and thus, it is desirable to specify the content of the order.

(6) If the employer orders certain amounts of money equivalent to the amount of wages for which the employer would be entitled to remedy for non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty to remedy for the non-performance of the duty.

(B) Next, we examine whether there is a justifiable reason for the Plaintiff’s failure to pay the amount corresponding to the wages to the Nonparty.

The following circumstances are as follows: ① the number of monthly work days of the non-party at the time of entering the labor contract with the non-party pursuant to the total management system for taxi transportation revenue shall be 26 days’, and the non-party’s wage shall be determined as the non-party’s wage for 90,000 won out of the total amount of transportation revenue (the transport revenue on tacotype) on a daily basis. ② If the plaintiff’s assertion was made legitimate examination at the Labor Relations Commission’s level, it is impossible to specify the amount equivalent to the wages as well as the non-party’s order for remedy and the non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s non-party’s total wage.

(3) Sub-decisions

Therefore, the disposition of this case taken by the defendant against the plaintiff is lawful on the ground that the plaintiff did not comply with the order of remedy of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Jae-hoon (Presiding Judge)