2019 High Court 264 Violation of the Labor Standards Act

A South 61. Symar

Park Sang-hee (Lawsuits) (Public Trial) and Kim Jong-hee (Public Trial)

Law Firm Do Governor;

Attorney* *

August 2019 8.20

The defendant shall be innocent.

1. Summary of the facts charged

The Defendant is the representative of ○○ ○○○○○○, Jin-gu, Seoul Special Metropolitan City, as the representative of ○○○○○○○○○ 558 - 4, and the Defendant is the primary contractor as to the accident compensation when the project is performed according to multiple contracts made by several times, for which the primary contractor is the employer as to the accident compensation when the project is performed according to several contracts.

(a) An employer shall provide necessary medical treatment at his expense or bear corresponding expenses for a worker who suffers from an occupational injury or disease;

Nevertheless, the Defendant did not bear KRW 318,80,80 as compensation for medical care since September 18, 2017 from November 2017, 2017, even though D was injured by a worker D, who was engaged in oxygen cutting work on July 15, 2017 at the third floor of the construction site, falling down in the third floor Asiba, and was injured by an injury to the left-hand part of the alley, the upper-hand part of the alley, the right-hand part of the brushes, and the upper part of the brushes.

(b) An employer shall pay a worker who suffers from an occupational injury or disease a compensation for suspension of work equivalent to sixty percent of his/her average wages during the period of his/her medical treatment;

Nevertheless, on July 15, 2017, the Defendant did not bear KRW 13,920,000 for temporary closure compensation from July 16, 2017 to November 8, 2017, even though D was injured by a worker D, who was engaged in oxygen cutting work on the third floor of the above construction site, falling down in the third floor Asiba, and was injured by the left-hand garrising to the upper part of the upper part of the 3rd part of the 3rd part of the 3rd part of the 4th part of the 4th part of the 4th part of the construction site.

(c) If a worker completely recovers from occupational injury or disease but has a physical disability, the employer shall provide him/her with compensation for disability calculated by multiplying the average wage by the number of days determined according to the degree of the disability;

Nevertheless, it did not pay disability compensation costs of 28, 00, 000 won for physical disability grade 12 (the right-of-side non-conformity) caused by injury to the work of the upper part of the D's upper part-hand garments, the upper part-hand garment, the upper part-hand garment, and the upper part-hand garment.

2. Defendant’s assertion and judgment

A. Summary of the defendant's lawsuit

The defendant was requested to introduce and request the company to perform the removal work from B, and only entrusted the removal work to C in good faith on behalf of B, and does not receive a direct contract for the removal work from B. Therefore, the defendant does not correspond to the "original contractor" as stipulated in Article 90 (1) of the Labor Standards Act.

B. Determination

1) Article 90(1) of the Labor Standards Act provides that the primary contractor shall be deemed an employer with respect to accident compensation when a business is conducted based on several contracts. Here, the primary contractor refers to a person who has entered into a contract with the ordering person, while the “contract” is a contract which takes effect when one of the parties agrees to complete a certain work and the other party agrees to pay remuneration for the result of the work.

2) In light of the consistent statement made with the investigation agency of C to the effect that the Defendant entered into a contract for the removal work directly with the Defendant, and that there is no entry of B, and other circumstances indicated in the records, such as the contents of the contract for the removal work and the process of performing the contract, the Defendant appears to have entered into the removal work contract with C, which goes beyond introducing B or mediating the removal work.

3) However, even if the Defendant entered into a contract for the removal work between the Defendant and C, if the Defendant did not receive a contract for the removal work from B, it cannot be deemed as the “original contractor” under Article 90(1) of the Labor Standards Act because it does not fall under the case where the Defendant’s project is carried out according to multiple contracts for the removal work several times. However, it is insufficient to recognize that the Defendant entered into a contract for the removal work with B and upon receiving a promise for remuneration from B for the result of the work on the following grounds.

① The Defendant, upon the request of the investigative agency from B to this court, is aware of the removal process, and actually arranged the removal process. The Defendant has long been aware of the relationship between B and B, and only attempted in good faith, knowing that B is faced with difficulties due to occurrence of civil petitions and financial difficulties.

② At first, from the investigative agency to this court, B asked the Defendant, who had difficulty in a close-friendly relationship with the investigative agency, to remove the structure. While the Defendant refused to do construction directly, the Defendant asked the Defendant to introduce the removal business entity, and the Defendant consistently stated that the Defendant entered into the removal business contract instead of finding the removal business entity. This conforms to the Defendant’s statement as to the circumstances leading up to the removal business contract.

③ The Defendant is running a manufacturing and construction business, and does not carry on the removal and recycling-related business, and the employees are only one, and they do not seem to have been able to directly receive the removal construction from B.

(4) There is no particular material to deem that B provided the defendant with remuneration under the contract agreement or any equivalent pecuniary benefits.

⑤ Meanwhile, the Defendant made a statement at the investigative agency that “A” and “A” have been set at KRW 1,00,000 at the time of removal, and that C would substitute the construction cost as a result of taking the scrap metal owned by the Defendant’s workplace at the time of removal. In short, the scrap metal at the time of removal alone is insufficient to cover the construction cost and thus, C would take an additional amount of KRW 5,000,000 in cash at the time of removal. According to this reasoning, there is doubt that the Defendant would not take the above scrap metal as a consideration for the contract in relation to B. However, it is difficult to conclude that the Defendant would have received the said scrap metal from the Defendant’s workplace at the time, and that it would be difficult for the Defendant to take part of the construction cost from the date of the said contract, which was expressed by the investigation agency, and that it would be difficult for the Defendant to take part of the construction cost from the first time to the point of view that the Defendant would have been aware that it would have been a removal of money from the Defendant’s and it.

4) The conviction in a criminal trial ought to be based on evidence that leads to a judge to have a reasonable doubt, and if there is no such evidence, even if there is doubt about the defendant's conviction, it is inevitable to determine the defendant's interest. Even if all evidence presented by the prosecutor is collected, it is insufficient to recognize the defendant as a "original contractor" under Article 90 (1) of the Labor Standards Act, which was contracted for removal works from B, and there is no other evidence to acknowledge it otherwise.

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime and the judgment of innocence is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is not publicly announced pursuant to the proviso of Article 58(2) of the Criminal Act.

Judges Song Jae-sung