The purpose of Articles 44-2 and 109 of the Labor Standards Act / In a case where there is an expression of intent of an employee who does not wish to punish a subcontractor, the standard for determining whether an expression of intent that does not wish to punish a subcontractor includes an immediate contractor, and in this context, whether it can be readily determined that the employee expressed his/her intent not to punish a subcontractor by excluding an immediate contractor (negative)

Articles 44-2 and 109 of the Labor Standards Act provide that where a contract is made on two or more occasions in a construction business, if a subcontractor who is not a constructor under the Framework Act on the Construction Industry fails to pay wages to his/her employees, an immediate upper contractor of a subcontractor shall be jointly and severally liable for the payment of wages to workers employed by the subcontractor and shall not be prosecuted against the subcontractor’s explicit intent. This is the purpose of imposing liability when the subcontractor actually fails to perform his/her obligation to pay wages, and such risk is realized.

However, in light of the fact that a direct contractor is liable for unpaid wages of a subcontractor even if there is no direct cause to the subcontractor, and where the subcontractor performs the subcontractor’s obligation to pay wages, the subcontractor is exempted from liability. Ultimately, the subcontractor’s act depends on whether or not the subcontractor is liable depending on the subcontractor’s act, and the subcontractor’s failure to obtain an opportunity to participate in the process of the subcontractor’s agreement due to the subcontractor’s failure to know the subcontractor’s non-payment of wages, the subcontractor may be exempted from punishment by his/her employee’s expression of intent, but there is little possibility that the express expression of intent not to punish the immediately upper contractor may not be explicitly made to the subcontractor. Furthermore, considering the fact that there is an expression of intent of workers who received wages from the subcontractor or exempted the subcontractor’s obligation, it is very rare to consider whether the subcontractor and the subcontractor expressed the subcontractor’s intention not to punish the immediately upper contractor, and whether the immediately upper contractor and the subcontractor expressed the subcontractor’s intention to exclude the subcontractor’s direct obligation without specifying the subcontractor’s wishes to do so.

Articles 44-2 and 109(1) and (2) of the Labor Standards Act, Article 327 subparag. 6 of the Criminal Procedure Act

Constitutional Court en banc Order 2013Hun-Ga12 Decided April 24, 2014 (HunGong211, 726)

Defendant

Prosecutor

Law Firm Gwangju Law Firm, Attorney Choi Han-soo

Suwon District Court Decision 2013No161 decided June 26, 2013

The appeal is dismissed.

The grounds of appeal are examined.

Articles 44-2 and 109 of the Labor Standards Act provide that where a contract is made on two or more occasions in a construction business, if a subcontractor who is not a constructor under the Framework Act on the Construction Industry fails to pay wages to his/her employees, an immediate upper tier contractor of the subcontractor shall be jointly and severally liable to pay wages to workers employed by the subcontractor and shall not be prosecuted against the subcontractor’s explicit intent. This means that the immediate upper tier contractor of the subcontractor shall not be prosecuted against the subcontractor’s explicit intent. This means that the immediate upper tier contractor commits an illegal act to subcontract construction to a person whose financial power, etc. for construction work is not verified, thereby causing an abstract risk as to the subcontractor’s failure to pay wages, if the subcontractor actually fails to perform his/her obligation to pay wages, and thus such risk is realized (see Constitutional Court en banc Decision 2013Hun-Ga12, Apr. 24, 2014).

However, in light of the fact that a direct contractor is liable for unpaid wages of a subcontractor even if there is no direct cause to the subcontractor, and where the subcontractor performs the subcontractor’s obligation to pay wages, the subcontractor’s act will be exempted from liability. Ultimately, the subcontractor’s act is bound to determine whether or not the subcontractor is liable or not depending on the subcontractor’s act; as a result, the subcontractor’s failure to obtain an opportunity to participate in the process of the subcontractor’s agreement between the subcontractor and workers due to the subcontractor’s failure to know the subcontractor’s non-payment of wages, there is little possibility that the subcontractor may be exempted from punishment by his/her employee’s expression of intent; furthermore, it is very rare in cases where workers who receive wages from the subcontractor or who exempted the subcontractor’s obligation want to be punished separately only by the subcontractor’s direct contractor, it is difficult to readily conclude that the subcontractor’s act includes the subcontractor’s intention to exclude the subcontractor’s direct payment of wages, and whether the subcontractor and the subcontractor’s employee wish not to participate in the process of the subcontractor’s agreement.

In light of the above legal principles and records, the court below's decision to reverse the judgment of the court of first instance which found the defendant guilty of the facts charged of this case is just and it is not erroneous in the misapprehension of legal principles as to Article 44-2 of the Labor Standards Act, contrary to what is alleged in the grounds of appeal. The Supreme Court precedents cited in the grounds of appeal are different cases and thus are not appropriate to be invoked in this case.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)