[1] The relationship between the crime of violation of Articles 112 and 36 of the Labor Standards Act and the crime of violation of Articles 112 and 42 of the Labor Standards Act (i.e., physical concurrence), and whether the crime of violation of Articles 112 and 36 of the Labor Standards Act may be established in addition to the crime of violation of Articles 112 and 42 of the Labor Standards Act with respect to wages in arrears that had already occurred before the worker dies or retires (affirmative)

[2] The meaning of "employer" under Article 15 of the Labor Standards Act

[3] The time when the crime of violating Articles 112 and 36 of the Labor Standards Act is established

[1] In full view of the contents, timing, and legislative intent of the obligation imposed on an employer under the provisions of Articles 36 and 42(2) of the Labor Standards Act, the crime of violation of Articles 112 and 36 of the Labor Standards Act and the crime of violation of Articles 112 and 42 of the Labor Standards Act shall be deemed to be in a substantive concurrent relationship. As such, as regards the overdue wages that had already occurred before the worker died or retires, the crime of violation of Articles 112 and 36 of the Labor Standards Act may be established separately from the crime of violation of Articles 112 and 42 of the Labor Standards Act.

[2] Articles 112 and 36 of the Labor Standards Act are employers. Article 15 of the Labor Standards Act provides that the term "employer" refers to a business owner, 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, such as matters relating to business management, and the term "person who acts on behalf of a business owner" refers to a person who represents or acts on behalf of a business owner with comprehensive delegation from the business owner for all or part of the business management, and the term "person who acts on behalf of a business owner with respect to other matters relating to workers" refers to a person who is given specific 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,

[3] The crime of violation of Articles 112 and 36 of the Labor Standards Act is established at the expiration of 14 days from the date when the cause for payment of wages, etc. occurred due to the worker's death or retirement.

[1] Articles 36, 42, and 112 of the Labor Standards Act / [2] Articles 15, 36, and 112 of the Labor Standards Act / [3] Articles 36 and 112 of the Labor Standards Act

[2] Supreme Court Decision 88Nu6924 delivered on November 14, 1989 (Gong1990, 51) Supreme Court Decision 97Do813 delivered on November 11, 1997 (Gong1997Ha, 3907) / [3] Supreme Court Decision 94Do1477 delivered on November 10, 1995 (Gong195Ha, 3959)

Defendant

Defendant

Attorney Park Jong-il et al.

Chuncheon District Court Decision 2005No257 delivered on October 21, 2005

All the judgment of the court below and the judgment of the first instance are reversed. Defendant is acquitted.

1. As to the second ground for appeal

The main text of Article 36 of the Labor Standards Act provides that “an employer shall pay wages, compensations, and other money and valuables within 14 days from the time when the cause for such payment occurred in the event an employee dies or retires.” This is to prevent an employee’s livelihood stability by preventing this from being prevented because it is difficult for the employee to receive money and valuables if the employee does not receive money and valuables, such as wages, which the employee should naturally receive after his/her death or retirement, remains in his/her workplace in order to receive money and valuables, and there is a risk that the employee might not receive money and valuables depending on the flow of time. On the other hand, the main text of Article 42(2) of the Labor Standards Act provides that “The wages shall be paid at a fixed date at least once a month.” This is to prevent the employee’s livelihood stability by preventing it from being sufficiently able to secure the necessary wages in his/her daily life if the employee is not paid for an irregular or long period.”

In full view of the contents and timing of the obligation imposed on an employer under the above provisions of the Labor Standards Act, and the legislative intent thereof, the crime of violating Articles 112, 36, and 112 and 42 of the Labor Standards Act and the crime of violating Articles 112 and 42 of the Labor Standards Act shall be deemed to be in a substantive concurrent relationship. Therefore, with respect to the overdue wages that had already occurred before a worker died or retires, the crime of violating Articles 112 and 36 of the Labor Standards Act may be established separately from the crime of violating Articles 112 and 42 of the Labor Standards Act. The allegation in the grounds of appeal on the basis of the different view

2. Regarding ground of appeal No. 1

The subject of the violation of Articles 112 and 36 of the Labor Standards Act is an employer. Article 15 of the Labor Standards Act provides that the term “employer” means an employer, a person in charge of business management, or a person who acts on behalf of an employer with respect to matters relating to workers, such as matters relating to the management of a business. Here, the term “person in charge of business management” refers to a person who is responsible for the general management of business and represents or acts on behalf of an externally after being delegated by the employer with a comprehensive delegation of the whole or part of the business (see Supreme Court Decision 97Do813, Nov. 11, 1997, etc.). The term “person who acts on behalf of an employer with respect to other matters relating to the business” refers to a person who is subject to certain authority and responsibility from the employer with respect to the determination of working conditions, such as personnel affairs, wages, welfare, labor management, etc., or orders, direction, and supervision (see Supreme Court Decision 88Nu6924, Nov. 14,

However, according to the records, at the time of December 7, 194, the Defendant: (a) was in the name of Nonindicted Company 1’s business operator from around 194 to 3; (b) Nonindicted Company 1’s business operator was in the name of Nonindicted Company 1’s business operator; (c) Nonindicted Company 2 was in the name of Nonindicted Company 2’s business operator who was in the name of Nonindicted Company 1’s business operator, and was in the name of Nonindicted Company 2’s business operator, and was in the name of Nonindicted Company 3’s business operator, and was in the name of Nonindicted Company 1’s business operator for which Nonindicted Company 2 was in the name of Nonindicted Company 5’s business operator for which Nonindicted Company 3 was in the name of Nonindicted Company 2’s business operator for which he was in the name of Nonindicted Company 2’s business operator for which he was in the name of Nonindicted Party 3, and (d) Nonindicted Party 2 was in the name of Nonindicted Party 3’s business operator for which he was in the name of Nonindicted Party 1’s business operator 2’s.

If the facts are as above, construction (the name of the business omitted) managed by Nonindicted 3 and (the name of the business omitted) managed by the Defendant were used in the same office, and business registration was separately made, and the Defendant managed business profits and expenses for each person’s own account. Since the Defendant was delegated by Nonindicted 3 on the whole or part of (the name of the business omitted) construction, the Defendant was not represented or represented externally, it cannot be said that the Defendant was the business owner or the business manager with respect to the business of Nonindicted 1, who was the owner of (the name of the business omitted) construction, and was transferred to the construction (the name of the business omitted) and was driving the 2ke. Furthermore, there is no evidence to acknowledge that the Defendant was given a certain authority and responsibility for the matters such as the determination of working conditions, wages, welfare, labor management, etc. from Nonindicted 1, who was the owner of the construction (the name of the business omitted) or who was an employee of Nonindicted 3, who was the owner of the business in charge of the business in accordance with the records, it is difficult for the Defendant to view that it was difficult from the business owner’s or the business.

Meanwhile, the crime of violation of Articles 112 and 36 of the Labor Standards Act is established at the expiration of 14 days from the date on which the cause for payment of wages, etc. occurred due to the death or retirement of a worker (see Supreme Court Decision 94Do1477, Nov. 10, 1995, etc.). The statute of limitations under Article 249(1)5 of the Criminal Procedure Act is three years. The crime of violation of the duty of liquidation of overdue wages against Nonindicted 1 was established around March 18, 200 when the period from March 4, 200 to 14 days after the retirement of Nonindicted 1 from the Defendant’s workplace. Since the prosecution of this case was instituted on Nov. 26, 2003, the statute of limitations expires.

Nevertheless, the court below's finding that "after March 4, 200, the defendant still remains in the employer's position against non-indicted 1, 200, and only after his retirement on July 11, 2002, it was erroneous for the court below to recognize the facts in violation of the rules of evidence or by misapprehending the legal principles on the employer's concept and the violation of the liquidation of money and goods under the Labor Standards Act, etc. It is an unlawful act that affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed, but this case is deemed sufficient to be directly tried by the Supreme Court, and thus, it is decided in accordance with Article 396(1) of the Criminal Procedure Act.

A. The gist of the Defendant’s grounds for appeal is that “The Defendant is not the employer liable for the settlement of money and valuables against Nonindicted 1, but at least the employer was not in the position of Nonindicted 1 after March 4, 2000, the instant prosecution instituted for three years thereafter constitutes the time the statute of limitations expires. In addition, Articles 112, 36, and 42(2) of the Labor Standards Act shall apply not to the instant overdue wages, but to Articles 112, 36, and 112, and 42(2) shall apply to the instant overdue wages, and the date on which the obligation to pay the overdue wages arises is at least March 200, even if the statute of limitations expires, the first instance court found the Defendant guilty of the instant facts charged, which erred by misapprehending the legal principles on the violation of the obligation to liquidate money and valuables under the Labor Standards Act.”

B. As a result of examining the aforementioned grounds of appeal, the argument that “this case’s crime shall be subject to Article 112 and Article 42(2) of the Labor Standards Act,” is without merit, but the argument that “after March 4, 200, the Defendant was no longer in the employer’s position with respect to Nonindicted 1, and thus the statute of limitations has expired” is with merit. Therefore, pursuant to Article 364(6) of the Criminal Procedure Act, the judgment of the first instance is reversed and the judgment is to be rendered again as follows.

The summary of the facts charged of this case is that "the defendant is the representative of the (business name omitted), who employs two full-time workers and engages in mid-time equipment rental business. The defendant served as a driver from May 5, 199 to the above (business name omitted), and did not pay 1,997,000 won of the overdue wages from July 11, 200 to March 4, 200, without any agreement on the extension of the due date for payment between the parties concerned, within 14 days from the date of the above retirement, which is the date of the cause for payment."

In light of Article 112 and Article 36 of the Labor Standards Act, the above crime is a statutory penalty of not more than three years, or a fine not exceeding twenty million won under Article 112 and Article 36 of the Labor Standards Act. Under Article 249(1)5 of the Criminal Procedure Act, the statute of limitations has three years, and the above crime is established at the expiration of 14 days from the date of occurrence of the cause for payment of wages, etc. Meanwhile, the above crime is established at the time of the lapse of 14 days from the date of occurrence of the cause for payment of wages, etc. In addition, the retirement of Nonindicted Party 1 from the Defendant’s workplace around March 4, 200 as mentioned above. Since the prosecution of this case was instituted more than three years and the statute of limitations has expired, the prosecution of this case

For the same reasons, this decision is delivered with the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)