Whether a business suspension allowance is liable to pay business suspension allowances even if disciplinary action is imposed on the ground of violation of the rules of employment.

In order for an employer to have the obligation to pay temporary shutdown allowances as prescribed in Article 38 of the Labor Standards Act to the temporary shutdown workers, the temporary shutdown should be caused by the cause attributable to the employer. Therefore, the above temporary shutdown allowances cannot be said to be paid if disciplinary action is taken on the ground of a violation

Articles 38 and 110-2 of the Labor Standards Act

Defendant

Defendant

Seoul District Court (83 High Court Decision 5421)

The judgment of the court below is reversed.

The defendant shall be innocent.

The gist of the defendant's grounds for appeal is that the defendant has a duty to pay the closure allowance to the non-indicted 1 and the non-indicted 5 workers at the time of the original trial, but the court below erred in finding the defendant guilty of committing a crime as stated in the judgment.

The judgment of the court below on the grounds for appeal above is examined ex officio prior to the judgment on the grounds for appeal, and since the prosecutor changed the facts charged with obtaining permission from the party members when the prosecutor was in the trial, the judgment of the court below on the premise of the previous

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and a member is again decided.

The summary of the facts charged in this case is that the defendant is the employer who employs 98 full-time workers in the name of the company (title omitted) in Eunpyeong-gu Seoul Metropolitan Government (number omitted), and if the above company temporarily shuts down its employees for the reason that the non-indicted 1 established the labor union from December 19, 1982 to February 19, 1983, the defendant paid 60/10 or more of the average wages during the period of temporary shutdown to the above company on the 7th day of each month without the Labor Relations Commission's approval, despite the fact that the non-indicted 1 did not pay 64,464 won for the temporary shutdown of December of the above person without the Labor Relations Commission's approval on January 7, 1983; 9,919 won for the temporary shutdown of the first month; 38,678 won for the temporary shutdown of the above month to the non-indicted 1, 1983; and the prosecutor did not pay the above amount to the non-indicted 1, the above 30.08 won.

In light of the facts charged, it is acknowledged that the defendant, who is an employer engaged in taxi transportation business such as the defendant's statement at the original trial court, the suspect examination protocol of the labor inspector, and the statement of the non-indicted 1, as stated in the facts charged, suspended the above non-indicted 1 and four employees for each period. However, as stated in the facts charged, as to whether the defendant is liable to pay the above workers' average wages at least 60 percent of the monthly salary during the above period of suspension of business, it is necessary to pay the so-called temporary closure allowance at least 60 percent of average wages during the period of suspension of business, according to Article 38 of the Labor Standards Act cited by the prosecutor as applicable provisions, if the employer intends to suspend the business due to his own cause, it should be due to the reasons attributable to the above defendant's failure to pay temporary closure allowances to each of the above workers on the date of monthly wage payment, and the above defendant cannot be deemed to have any other obligation to receive temporary closure allowances from each of the above non-indicted 1's investigative agencies and the court's decision of dismissal.

Ultimately, the facts charged in the instant case premised on the Defendant’s duty to pay leave allowances to each of the above workers fall under the case where there is no proof of crime without examining further, and thus, the Defendant is acquitted by the latter part of Article 325 of the

Judges Lee Dong-dae (Presiding Judge)