Defendant

Prosecutor

Kim Chuncheon (prosecutions), knife, Kim Tae-tae, and the highest leapscope (trials)

Law Firm LLC, Attorneys Kim Jong-ho et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2012 High Court Decision 873 Decided January 24, 2014

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

The Rules of Employment for the First Amendment and the Rules of Employment for the Second Amendment of the Minimum Wage Act aim at avoiding the intent of amending the Minimum Wage Act, and thus are null and void in violation of the compulsory provisions, and it is difficult to deem that there was a legitimate consent of the workers on each of the above Rules of Employment. Nevertheless, the court below found the Defendant not guilty of the facts charged in this case on the premise that the above Rules of Employment

2. Determination

A. The facts charged in this case

The defendant is a user who runs the taxi transport business by employing 76 full-time workers as the representative member of the non-indicted 1 limited partnership company located at the time of strike.

Even though an employer pays wages to workers subject to the minimum wage amount above the minimum wage amount, the Defendant paid 31,894 won to the employees of the above company on July 7, 2010, which fell short of the minimum wage amount, and paid the total amount of 49,136,961 won to 22 workers as shown in the attached Form, and thereby, did not pay wages above the minimum wage amount to those workers subject to the Minimum Wage Act.

B. The judgment of the court below

1) Basic facts

A) The minimum wage in 2010 (from January 1, 2010 to December 31, 2010) determined and announced by the Minister of Labor under the Minimum Wage Act is KRW 4,110 per hour.

B) Details of each employment rules and employment contracts

(1) The basic working hours under the Rules of Employment (hereinafter “previous Rules of Employment”) of Nonindicted Partnership 1 (hereinafter “Nonindicted Company 1”) enforced and applied from July 1, 2007 are eight hours a day, forty hours a week, and twenty nine hours a month (Article 30 of the Rules of Employment, and evidence No. 1 submitted by Defendant 1).

(2) On July 29, 2010, Nonindicted Co. 1 revised the rules of employment (hereinafter “the rules of employment for the first revision”), and set contractual work hours as six hours and twenty minutes per day, 184 hours per day, 17 hours per day in the case of a full-time employee, 182 hours per day, and 182 hours per month in the case of a full-time employee (Article 34 of the Rules of Employment and evidence submitted by Defendant 2).

(3) On October 27, 2010, Nonindicted Co. 1 revised the contents of the rules of employment again (hereinafter “the rules of employment for the second revision”), and set contractual work hours as 4 hours a day, 116 hours a day, 6 hours a day, 40 minutes a day, and 115 hours a day in case of a shooting-day worker (Article 34 of the Rules of Employment, and page 60 of the investigation records).

(4) The written employment contract (Evidence No. 4 submitted by the defendant) on June 11, 2007 against Nonindicted 2 and the written employment contract (in pages 14 of investigation records) on October 15, 2009 against Nonindicted 3, the basic working hours are stated as 209 hours a month. The written employment contract (Evidence No. 5 submitted by the defendant) on June 30, 2010 against Nonindicted 4 on June 184 hours a month or 182 hours a month.

C) All of the Rules of Employment for the First Amendment and the Rules of Employment for the Second Amendment set the enforcement date as July 1, 2010 in the Addenda.

D) The previous rules of employment, the first amended rules of employment, and the second amended rules of employment provide that “wages shall be closed as of the end of each month and shall be paid from the fifth day of the following month, counting from the first day of each month.”

2) Determination

According to the evidence submitted by the prosecutor and the defendant, the provision on contractual work hours of 10th Amendment and 2th Amendment of the Rules of Employment 1. The provision on contractual work hours of 10th Amendment and 2th Amendment may be deemed to have reduced only nominal work hours according to the fixed wage to avoid the minimum wage under the Minimum Wage Act, even though the actual work hours of the taxi engineer belonging to Nonindicted Company 1 were not reduced before and after the enactment of the Rules of Employment 10. However, the pertinent provision on the Rules of Employment cannot be readily concluded as null and void immediately on the sole basis of the following circumstances, i.e.,, the taxi industry including Nonindicted Company 1, at the time of the consent of the employees to reduce contractual work hours, was faced with considerable difficulties in operating the said provision on the ground that the monthly minimum work hours of 20th Amendment and the monthly work hours of 1st Amendment were 0th Amendment to the Rules of Employment 10th Amendment to the Rules of Employment, and thus, it is difficult to find that the monthly minimum work hours were reduced up to the same part.

C. Judgment of the court below

Article 32(1) of the Constitution provides, “The State shall endeavor to promote workers’ employment and ensure appropriate wages through social and economic means, and shall implement the minimum wage system under the conditions as prescribed by the Act.” Accordingly, the Minimum Wage Act provides for matters concerning the minimum wage of workers to contribute to the sound development of the national economy by guaranteeing workers’ minimum wage level by guaranteeing workers’ minimum wage level and improving the quality of labor force, and Article 6(3) of the same Act provides for matters concerning the minimum wage of workers. In this case, the invalidated part of the labor contract between the workers and employers subject to the minimum wage shall be deemed null and void, and the same shall be deemed to have been paid the same wage as the minimum wage under this Act. In particular, the legislative purport of Article 6(5) of the Minimum Wage Act provides, “The scope of wages included in the minimum wage of workers engaged in taxi transport business shall be determined by Presidential Decree, excluding the wage calculated on the basis of output.” This is that it is difficult for workers to secure the basic amount of taxi commission of more than the minimum wage rate of their own employees to transport earnings.”

However, according to the facts found by the lower court based on the evidence adopted, Nonindicted Company 1 was unable to include the wages based on output, such as excess earnings, other than taxi commissions, in the wages, which serve as the basis for calculating the minimum wage for its employees, even after the enforcement of Article 6(5) of the Minimum Wage Act from July 1, 2010. In order to avoid the amount of fixed wages paid to its employees falling short of the minimum wage under the Minimum Wage Act, the fixed wage paid to its employees was reduced according to two times through amendments to the Rules of Employment, although the actual working hours were not changed, and as a result, the fixed wage paid to its employees was reduced by 16 hours in the previous working hours from 209 to 115 hours in the case of the first half of the total working hours, and the amount of working hours reduced by 115 hours in the case of the first revision and the second revision of the Rules of Employment was concluded with the intent of amending the Minimum Wage Act to ensure that the fixed wage was not higher than the minimum wage rate under the Minimum Wage Act.

Nevertheless, the court below rendered not guilty of the facts charged in this case on the premise that the provision on contractual work hours under the above rules of employment is valid, and the judgment below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment, and the prosecutor'

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The criminal facts of this case are as stated in the above Paragraph 2-A.

1. Partial statement in the original judgment and the trial court of the defendant;

1. Each legal statement in the original trial by the witness Nonindicted 2, Nonindicted 3, and Nonindicted 5

1. Reporting on the results of investigation (Nonindicted 1 Company);

1. Submission of each employment contract, rules of employment, wages ledger, and standard for payment of wages on a daily basis;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 28 and 6(1) of the former Minimum Wage Act (Amended by Act No. 11278, Feb. 1, 2012) (Selection of Fines)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The Defendant and the defense counsel asserted that the Rules of Employment for the First Amendment and the Rules of Employment for the Second Amendment are not aimed at avoiding the intent of the Amendment of the Minimum Wage Act, and thus, the Rules of Employment for the Second Amendment are valid. Moreover, since the Amendment of the Minimum Wage Act does not include excess taxi earnings after deducting taxi commissions from the wages of taxi drivers, the hours of operation for the employees of Nonindicted Company 1 to earn excess taxi earnings during the hours of taxi operation should be excluded from contractual work hours.

On the other hand, the part of the contractual work hours under each of the above rules of employment was concluded with a view to evading the Minimum Wage Act, which is a mandatory law, and thus null and void pursuant to Article 6(3) of the Minimum Wage Act, as seen earlier. Moreover, even if the revision of the Minimum Wage Act, the excess transport earnings cannot be included in the amount of wages calculated based on the output of the minimum wage of taxi drivers within the scope of the wages included in the minimum wage of taxi drivers, given that the excess transport earnings still have the nature of taxi drivers’ wages, the hours of operation for acquiring excess transport earnings cannot be deemed to be excluded from the working hours, by separating the hours during which taxi drivers run a taxi.

Therefore, the above assertion by the defendant and defense counsel is without merit.

In light of the amount of unpaid wages and other various circumstances, such as the Defendant’s age, character and conduct, environment, the details and details leading to the instant crime, and the circumstances after the instant crime, etc., the punishment as ordered shall be determined by taking into account the following factors:

[Attachment]

Judges Kim Tae-tae (Presiding Judge)