[1] Whether Article 28 subparag. 2 of the former Wage Claim Guarantee Act is subject to criminal punishment for the relevant parties including employers, etc. to make false statements in the course of investigating the case of application for recognition of bankruptcy, etc. (negative)

[2] In accordance with whether Article 28 of the Wage Claim Guarantee Act amended on March 24, 2014 was paid a substitute payment, etc., Article 28(1) and (2) of the Act on the Guarantee of Wage Claims separates the statutory penalty from that of paragraphs (1) and (2). Article 28(2) of the former Act on the Guarantee of Wage Claims provides that statutory penalty for this imprisonment under Article 28(2) of the former Act on the Guarantee of Wage Claims lowers the statutory penalty than that of the former Act constitutes “when a sentence is heavier than that of the former Act due to the amendment to the former Act after a crime” (affirmative

[1] Article 14(3) of the former Wage Claim Guarantee Act (amended by Act No. 10967, Jul. 25, 201; hereinafter the same) stipulating a false report and a false statement with regard to the obligation to return a substitute payment received through fraudulent means or through fraudulent means. On the other hand, Article 28 subparag. 2 (hereinafter “Punishment Provisions”) of the former Wage Claim Guarantee Act stipulating a false report, certification, or submission of documents in order to punish a substitute payment received through fraudulent means does not include a false report or submission of documents in the form of an act. In addition, the provision on “report” in the above Act does not include a false statement in relation to the procedure to pay substitute payment in compliance with the above Act, as it does not differ from Article 22 of the former Wage Claim Guarantee Act and Article 10 of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 23488, Jan. 6, 2012; hereinafter the same). Thus, it does not constitute a criminal provision that does not constitute a “statement report” under the penal provision.

[2] Article 28 of the former Wage Claim Guarantee Act (amended by Act No. 10967, Jul. 25, 201; hereinafter the same shall apply) provides that "a person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20,000 won." Subparagraph 1 provides that "a person who receives substitute payment by fraudulent or other illegal means" in subparagraph 2 provides that "a person who makes a false report, certification, or submits false documents so that substitute payment may be received by fraudulent or other illegal means" in subparagraph 2, but Article 28 of the Wage Claim Guarantee Act provides that "a person who obtains substitute payment by any of the following means shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30,000 won," and "a person who obtains substitute payment by false or other unlawful means under subparagraph 2 provides that "a person who obtains substitute payment by any of the following methods or by fraudulent means under Article 7-2," and "a person who obtains substitute payment by another person under subparagraph 1 or 7.

Article 28 of the amended Wage Claim Guarantee Act, depending on whether substitute payment, etc. has been made, separate statutory punishment is prescribed under paragraphs (1) and (2). Article 28(2) of the amended Wage Claim Guarantee Act, corresponding to subparagraph 2 of Article 28 of the former Wage Claim Guarantee Act, provides that statutory punishment against imprisonment is lower than that of the former Act. This ought to be deemed as an anti-sexual measure taken from the fact that the previous penal provision that uniformly applies the same statutory punishment regardless of whether a substitute payment has been made is excessive in cases where at least a substitute payment has not been made. Therefore, this constitutes “when a punishment is less than that of the former Act due to a change of Acts after a crime” under Article 1(2) of the Criminal Act.

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Article 14(1) of the former Wage Claim Guarantee Act (Amended by Act No. 10967, Jul. 25, 201; see current Article 14(2)), Article 14(3) (see current Article 14(4)), Article 22 subparag. 2, and Article 28 subparag. 2 (see current Article 28(2)1); Article 10(1) and (2) of the former Enforcement Decree of the Wage Claim Guarantee Act (Amended by Presidential Decree No. 23488, Jan. 6, 2012; / [2] Article 1(2) of the Criminal Act, Article 28 subparag. 1(2) of the former Wage Claim Guarantee Act (Amended by Act No. 10967, Jul. 25, 201); Article 28 subparag. 1(1) and 28(1)2 subparag. 1) of the current Wage Claim Guarantee Act

Defendant 1 and two others

Defendants

Law Firm, Kim & Lee LLC, Attorneys Yoon Tae-ho et al.

Gwangju District Court Decision 2012No1534 Decided December 26, 2012

The judgment below is reversed, and the case is remanded to the Gwangju District Court.

1. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. The summary of the facts charged in the instant case is as follows: (a) Defendant 1 and Defendant 2 conspired, and (b) Defendant 1 was asked to summon the labor inspector belonging to the Gwangju Regional Employment and Labor Office in connection with the case of application for recognition of bankruptcy, etc. against Nonindicted Company 1, Nonindicted Company 2, and Nonindicted Company 3, the partner company of the Gwangju Regional Employment and Labor Office (hereinafter “Defendant 3”) by means of a false statement that the above subcontractor closed its business and the actual business owner failed to conduct its business any longer than Defendant 3’s business at the place of business; (c) Defendant 1 was asked to submit a false statement of fact from the labor inspector belonging to the Gwangju Regional Employment and Labor Office in relation to the case of application for recognition of bankruptcy, etc. to Nonindicted Company 3; and (d) Defendant 2, who prepared a false statement of fact with respect to each of the above Defendant’s employees’ cooperation or substitute payment on April 25, 201, so that each of the above Defendant’s labor inspector was found to have been subject to the Defendant 3’s cooperation.

B. Based on its stated reasoning, the lower court upheld the first instance judgment convicting the Defendants of all the charges of this case on the ground that Defendant 1’s false statement and the submission of a false factual confirmation constituted “false report” under Article 28 subparag. 2 of the former Wage Claim Guarantee Act.

C. However, we cannot agree with the above determination by the court below for the following reasons.

1) First of all, the meaning of the language and text used in the law, if any, must be determined by the relevant law. However, in addition to examining the ordinary meaning of the language and text, the systematic and logical understanding of how it is used in the relevant law should be made.

However, Article 28 Subparag. 2 of the former Wage Claim Guarantee Act (amended by Act No. 10967, Jul. 25, 2011) provides that “a person who makes a false report, certification, or submits false documents so that a substitute payment may be made by fraud or other improper means” shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won (hereinafter “instant penal provision”).

On the other hand, Article 14 of the same Act provides that the Minister of Employment and Labor may require a person who has received a substitute payment by fraud or other improper means to return all or part of the substitute payment (Paragraph 1), and that if the substitute payment is made by fraudulent means, such as a false report, statement, certification, and submission of documents, the person who has committed the act shall be jointly and severally liable to return the substitute payment with the recipient (Paragraph 3). Unlike the instant penal provision, the provision of this case provides that “a false statement” as one of the types of acts, apart from “a false report”.

In addition, Article 22 Subparag. 2 of the same Act provides that the Minister of Employment and Labor may demand the parties concerned, such as the business owner and workers engaged in the business, to submit reports or related documents necessary for the payment of substitute payment, as prescribed by Presidential Decree. Article 10 of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 23488, Jan. 6, 2012) provides that the person who requests a substitute payment shall obtain confirmation from the Minister of Employment and Labor as to certain matters, such as declaration of bankruptcy, etc. (Article 22 (1)), and the Minister of Employment and Labor shall take necessary measures pursuant to Article 22 of the Act, such as requesting the relevant business owner, bankruptcy trustee, administrator, and manager to submit reports or related documents related to declaration of bankruptcy (Article 22 (2)).

As above, Article 14(3) of the former Wage Claim Guarantee Act stipulating that a substitute payment is made by unlawful means or through fraudulent means with regard to the obligation to return a substitute payment, expressly stating the false report and false statement. On the other hand, in order to punish the act of receiving a substitute payment by unlawful means, the instant penal provision only stipulates the act of false report, certification, or submission of documents, and does not specify the type of act, and the provision regarding the payment procedure of substitute payment in the above Act does not differ from the above Article 22 of the above Act and Article 10 of the Enforcement Decree of the above Act. Thus, it is reasonable to view that a simple false statement, which does not fall under the “report” under the above penal provision, does not fall under the type of act subject to punishment under the penal provision of this case. Moreover, even though the instant penal provision does not stipulate the “report”, the meaning of the “report” under the same provision does not include the case where a labor inspector is investigated in relation to an application for recognition of bankruptcy, etc., and thus, it does not constitute a violation of the principle of no punishment without law.

2) However, according to the reasoning of the lower judgment and the record, Defendant 3’s respective collaborative companies (Nonindicted Co. 1, Nonindicted Co. 2, and Nonindicted Co. 3) filed a petition against the actual business owners of the above collaborative company on or around October 2010 on the ground of delayed payment of wages; Defendant 1 filed an application for recognition of bankruptcy, etc. on or around December 2010; Defendant 1 received an investigation on the said case on November 9, 2010 prior to the filing of the said application for recognition of bankruptcy, etc., and received an investigation on April 5, 201 and June 13, 201; Defendant 1 also received a written confirmation from the labor inspector on or around April 5, 2011, and Defendant 1 received a written confirmation of the facts that he/she is subject to criminal punishment on or after receiving a written confirmation from the labor inspector on or around 201.

Examining such factual relations in light of the former Wage Claim Guarantee Act and the Enforcement Decree thereof, there is room to view that Defendant 1’s act of submitting a confirmation statement on April 25, 201 constitutes a report requested by a labor inspector to report in relation to the payment of substitute payment. However, each statement made by Defendant 1 after undergoing an investigation three times cannot be deemed to constitute “report” under the instant penal provision. Nevertheless, the lower court found Defendant 1 guilty of all the facts charged against the Defendants on the grounds as stated in its reasoning on the premise that each of the above statements by Defendant 1 constituted “false report” under Article 28 subparag. 2 of the former Wage Claim Guarantee Act. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of the instant penal provision, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

2. The decision shall be made ex officio;

A. In a case where the evaluation of the past acts committed as a crime has changed depending on the changes in the ideology of the penal law, which served as the reason for the enactment of the penal law, and the evaluation of the acts committed as a crime was recognized and punished as a crime itself, or where the Acts and subordinate statutes were amended or amended in light of reflect that the punishment was excessive, the new law should be applied in accordance with Article 1(2) of the Criminal Act (see Supreme Court Decision 2009Do12930, Mar. 11, 2010, etc.

B. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment convicting Defendant 1 of the instant charges by applying Article 28 Subparag. 2 of the former Wage Claim Guarantee Act as to the false report that Defendant 1 was requested by the labor inspector of the Gwangju Regional Employment and Labor Agency to submit a factual confirmation from the labor inspector of the Gwangju Regional Employment and Labor Agency, and prepared and submitted a false confirmation document on April 25, 201.

C. Article 28 of the former Wage Claim Guarantee Act provides that "a person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won," subparagraph 1 provides that "a person who receives a substitute payment by fraudulent or other illegal means" and subparagraph 2 provides that "a person who makes a false report, certification, or submits false documents so that a substitute payment may be received by fraudulent or other illegal means" but Article 28 of the Wage Claim Guarantee Act amended by Act No. 12528, Mar. 24, 2014; effective September 25, 2014; and Article 28 of the same Act provides that "a person who has any of the following persons shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30,000 won; a person who has received a substitute payment under Article 7 or a substitute payment under Article 7-2 by false or other unjust means shall be punished by imprisonment with prison labor for not more than seven years; a person who has received a substitute payment under Article 2 or 7-2."

Article 28 of the amended Wage Claim Guarantee Act, depending on whether a substitute payment, etc. has been made, separate statutory punishment is prescribed under paragraphs (1) and (2). Article 28(2) of the amended Wage Claim Guarantee Act, corresponding to subparagraph 2 of Article 28 of the former Wage Claim Guarantee Act, stipulates that the statutory punishment is lower than that of the former Act, with respect to imprisonment. This ought to be deemed as an anti-sexual measure taken from the fact that the previous penal provision that uniformly applies the same statutory punishment regardless of whether a substitute payment has been made, is excessive in cases where at least a substitute payment has not been made. Therefore, this constitutes “when a punishment is less than that of the former Act due to a change of Acts after a crime” under Article 1(2) of the Criminal Act.

Therefore, among the facts charged in the instant case, with regard to false reports due to the submission of false certificates of fact on April 25, 2011, Article 1(2) of the Criminal Act cannot be punished pursuant to the former Wage Claim Guarantee Act, and can only be punished pursuant to Article 28(2) of the former Wage Claim Guarantee Act, which is a new corporation, at the time of an act. As such, the lower judgment that applied the provisions of the former Wage Claim Guarantee Act has no longer been maintained in this respect.

3. Therefore, without examining the remaining grounds of appeal by the assent of all participating Justices, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Justices Kim Shin (Presiding Justice)