The meaning of "employer" and "person who acts on behalf of an employer with respect to matters concerning workers" under Article 2 (1) 2 of the Labor Standards Act means "employer" and "person who acts on behalf of an employer".

Articles 2(1)2, 36, and 109 of the Labor Standards Act

Supreme Court Decision 88Nu6924 Decided November 14, 1989 (Gong1990, 51) Supreme Court Decision 2005Do8364 Decided May 11, 2006 (Gong2006Sang, 1092) Supreme Court Decision 2008Do5984 Decided October 9, 2008 (Gong2008Ha, 1568)

Defendant

Defendant

Seoul Southern District Court Decision 2014No933 decided October 31, 2014

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. The subject of a violation of Articles 109 and 36 of the Labor Standards Act is an employer. Article 2 of the Labor Standards Act provides that the term "employer" refers to an employer, a person in charge of business management, or a person who acts on behalf of a business owner with respect to matters relating to workers. The term "business owner" refers to the subject of business management, and the term "person who acts on behalf of a business owner with respect to matters relating to workers" refers to a person who is given certain authority and responsibility from the business owner with respect to matters such as determination of working conditions, such as personnel affairs, wages, welfare, labor management, etc., or orders, direction, or supervision of business (see Supreme Court Decisions 88Nu6924, Nov. 14, 1989; 2008Do5984, Oct. 9, 2008, etc.).

2. The court below affirmed the judgment of the court of first instance. ① the representative of the retired workers of this case was awarded a subcontract for a molding construction in the construction work of this case, and the defendant demanded the number of the necessary trees at the site, making the above retired workers work together with the above retired workers; ② the defendant stated that he had made the above retired workers' wage decisions, wages payment, and specific work orders; ② the defendant received all wages from the retired workers of this case from the non-indicted 2 corporation and paid them individually to the above retired workers; ③ the defendant asserted that he paid wages in advance upon delay of the payment of wages to the retired workers of this case; ③ the defendant was merely a simple wage worker; and the non-indicted 2 corporation was merely a mere wage worker; ④ the defendant was not required to pay wages to other workers in the situation where it is difficult for the defendant to do so; ④ the defendant prepared a construction agreement on construction work after the completion of the construction work of the ○○ Association Construction Work; and there was no other evidence to acknowledge that the above retired workers of this case were the above workers.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The following facts are acknowledged according to the evidence duly examined by the court below.

① On April 16, 2012, Nonindicted Co. 2 agreed to subcontract the construction cost of KRW 210,420,000 to the Defendant on April 16, 2012, from the first to fourth underground of the instant construction work that was contracted by Nonindicted Co. 3.

② The retired workers, etc. of the instant case prepared a labor contract stating the employer as Nonindicted Company 2 and worked at the construction site of the instant case, and delegated the Defendant with the right to receive wages.

③ From October 1, 2012, Nonindicted Co. 4 stated in the first instance court that Nonindicted Co. 2 directly operated the instant construction work.

④ When Nonindicted Co. 2 delayed the payment of wages to the figures of the instant construction site and the construction was suspended, the Defendant, on October 31, 2012, paid KRW 18,000,000 out of the wages of the instant construction project as one’s money in order to carry out a reinforced concrete mold construction project, and Nonindicted Co. 2’s on-site director Nonindicted Co. 4, in order to carry out the work on the same day, prepared and issued to the Defendant a written confirmation that the Defendant confirmed that he paid KRW 18,00,000, out of the wages of the trees, was a part of the Defendant’s preemptive payment.

⑤ Wages which were not paid to retired workers of the instant case occurred during the period during which the “stove reinforced concrete mold construction work” was carried out, among the instant construction works, and the remaining wages payment dates except for the wages of non-indicted 5 are January 10, 2013.

B. Therefore, insofar as there is no evidence of the fact that the Defendant was awarded a subcontract for the instant construction of reinforced concrete mold built from Nonindicted Co. 2 to 4 underground, as well as the instant construction of reinforced concrete mold built, it is difficult to conclude that the Defendant is an employer who is obligated to pay wages to the instant retired workers who performed the instant construction of reinforced concrete mold built among the instant construction works, and it is difficult to conclude that Nonindicted Co. 2 paid to the Defendant up to December 10, 2012 by Nonindicted Co. 2 included KRW 27,690,000 of the retirement workers’ wages in the instant retirement workers’ wages in the instant construction work.

C. Nevertheless, the judgment of the court of first instance which judged the defendant as the employer of the retired workers of this case and found the defendant guilty of the facts charged of this case is justifiable, which is erroneous in the misapprehension of the rules of evidence or in the misapprehension of the legal principles as to the violation of the concept of the employer and the obligation to liquidate money and valuables under the Labor Standards Act, which affected the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)