Defendant

Defendant

Jin-ship

Attorney Park Jong-il

Chuncheon District Court Decision 2003Ma302 Delivered on March 24, 2005

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant introduced Non-Indicted 2, a driver of the Crest, to Non-Indicted 1 upon the request of Non-Indicted 1, and did not have employed Non-Indicted 2. The Defendant is not the employer of Non-Indicted 2, and even if the Defendant was employed by Non-Indicted 2 at the time of driving the Crest owned by Non-Indicted 1, Non-Indicted 2, even if Non-Indicted 2’s employer was employed directly by Non-Indicted 3 after March 4, 200, and the Defendant’s employment relationship between the Defendant and Non-Indicted 2 was terminated. Thus, the prosecution of this case brought three years after the said period was expired.

B. Legal principles

Even if the Defendant is obligated to pay wages to Nonindicted 2 as the employer, Article 42 of the Labor Standards Act, which provides for the obligation to pay wages and retirement allowances, should be applied to the case, not Article 36 of the Labor Standards Act, but Article 42 of the same Act, which provides for the obligation to pay wages and retirement allowances, and the date of occurrence of the obligation is at the latest around March 200. As such, the instant public prosecution instituted after the lapse of three years thereafter became final and conclusive.

2. Determination

A. Error of mistake

(1) Whether the Defendant was in the employer’s position against Nonindicted 2

The term “employer” under the Labor Standards Act means a business owner, a person in charge of business management, or a person who acts on behalf of a business owner with respect to matters concerning workers, and includes a person who has specific authority for labor management as a subject of obligation to comply with the provisions of the Labor Standards Act.

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., Nonindicted 2, consistently employed the Defendant in the court of the court below, knew that the Defendant was owned by Nonindicted 1, and later, he was the owner of the Defendant. The Defendant was not only in charge of the overall operation of the workplace, such as work instructions, vehicle dispatch, work management, etc., but also stated that he was directly paid monthly wages from the Defendant. The Defendant also proposed that he was able to do work to Nonindicted 2 (trade name omitted) at the investigative agency and the court of the court of the court, and was directly in charge of the management (However, the court of the court below reversed it again at the court of the court below). Since the Defendant’s trade name was stamped “(trade name omitted)” under the name of the Defendant, Nonindicted 2 stated that he paid Nonindicted 2’s monthly wages to Nonindicted 2, who was the owner of the Defendant’s business, and that he did not have any overall interest in the operation and management of the Defendant’s own funds.

(2) As to the retirement date of Nonindicted 2

In light of the following circumstances acknowledged by the evidence duly adopted and investigated at the lower court. ① Operation of Nonindicted Party 1 was in accordance with the direction of the Defendant, and Nonindicted Party 2 was driving Nonindicted Party 4 (the wife of Nonindicted Party 3). At the time of (Trade Name omitted) Operation of Nonindicted Party 1’s office, Nonindicted Party 2 and Nonindicted Party 3’s trade name was in line with Nonindicted Party 4’s trade name, and Nonindicted Party 3 was in line with Nonindicted Party 4’s order, and Nonindicted Party 2 was in line with Nonindicted Party 3’s order at the time of Non-Party 2’s use of the trade name, and Nonindicted Party 3 was in line with Nonindicted Party 4’s order, and Nonindicted Party 2 was in line with Nonindicted Party 3’s trade name, and Nonindicted Party 3 was in line with Nonindicted Party 4’s order, and Nonindicted Party 2 was in line with Nonindicted Party 3’s mutual name omitted, and Nonindicted Party 3 was in line with Defendant 2’s mutual name.

B. Legal principles

However, Article 36 of the Labor Standards Act provides that an employer shall pay wages, compensations, and other money or valuables within 14 days from the time when the cause for the payment thereof occurred if a worker dies or retires. The principle of payment of wages under Article 42(2) of the Labor Standards Act requires an employer to liquidate legal relations early in order to ensure the stability of the livelihood of retired workers, and the principle of payment of wages under Article 42(2) of the Labor Standards Act is intended to ensure the stability of the livelihood of workers by compelling the employer to pay labor on the fixed date every month without the care of the worker. As such, the above provisions are different from legislative intent, time of the crime, the subject of the crime (for example, the time of the crime, the subject of the crime can be changed at the above two times). Since it is practically difficult for the employer to raise an objection against the delayed payment of wages before his retirement, it is not necessary for the employer to apply Article 42(2) of the Labor Standards Act to the case of this case before the death or retirement of the employee, and it is not necessary to prosecute the above Article 362 of the Labor Standards Act.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Haak-gu et al. (Presiding Judge)