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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the facts charged and the summary of the judgment of the court below are as follows: "The defendant is the representative director of the Seocho-gu Seoul Metropolitan Government D Co., Ltd. who is employed by 300 full-time workers and engages in the building management service business. The above workplace was working from April 21, 2004 to February 13, 2010 and retired workers E in the above workplace and was working for 3,841,920 won for overtime and night work in 2007, 4,162,080 won for overtime and night work in 2008, and 4,416,000 won for overtime and night work in 209, and did not pay 12,420,000 won for overtime work and night work within 14 days from the date of retirement without agreement between the parties." The court below acquitted the above facts charged.
2. The summary of the grounds for appeal (based on factual errors, misunderstanding of legal principles) E, waiting in the waiting room from 24:00 to 05:00 the following day, and taking rest in the waiting room, but at that time, there was a vehicle for settling parking accounts, so it is impossible to freely move, and thus, it is included in working hours.
If so, E is difficult to view that the Defendant calculated the blanket wage by taking into account all such points, since D (hereinafter “D”) has worked for more than 259 hours a month calculated as working hours, and it is difficult to view that the Defendant is obliged to pay overtime and night work allowances to E, and the Defendant is also aware of the intent of violating the Labor Standards Act.
3. Judgment of the court below
(a) Upon entering into an employment contract, an employer shall, in principle, determine the basic wages of the worker and pay the total of the allowances by calculating such allowances as overtime hours, holidays, night work allowances, etc., with the consent of the worker, in consideration of the work hours, the form and nature of the work, etc., and inspiring the convenience of the calculation and the desire of the worker to work.