[1] Whether Article 7-2 of the Enforcement Decree of the Labor Standards Act applies to the calculation of the number of "regular workers" in order to determine whether the obligation to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act exists (negative)

[2] In order to determine the existence of the obligation to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act, the period which serves as the basis for calculating the number of "regular workers" (i.e., the total working period of the relevant worker) and the standard for determining whether the relevant worker constitutes "workplace with at

[1] Articles 3, 9, and 31 (see current Article 44 subparagraph 1) of the former Guarantee of Workers' Retirement Benefits Act (wholly amended by Act No. 10967, Jul. 25, 201); Article 1 of the Addenda (see current Article 27, Jan. 27, 2005); Article 2 of the Addenda to the Enforcement Decree of the Guarantee of Workers' Retirement Benefits Act (amended by Presidential Decree No. 2010, Sep. 29, 2010); Articles 11, 36, and 109 of the Labor Standards Act; Article 7-2 of the Enforcement Decree of the Labor Standards Act / [2] Articles 3, 9, and 31 of the former Guarantee of Workers' Retirement Benefits Act (wholly amended by Act No. 10967, Jul. 25, 201); Article 1 of the Addenda (see current Article 44 subparagraph 1); Article 1 of the Enforcement Decree of the Guarantee of Workers' Retirement Benefits Act (Article 1096)

[2] Supreme Court Decision 99Do1243 delivered on March 14, 2000 (Gong2000Sang, 1009) Supreme Court Decision 2008Do364 Delivered on March 27, 2008

Defendant

Defendant

Busan District Court Decision 2012No1458 Decided August 30, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. The Guarantee of Workers' Retirement Benefits Act provides for matters necessary for the establishment and operation of the workers' retirement benefits system, thereby separating the retirement benefits system under the Labor Standards Act from January 27, 2005 to December 1, 2005, and was in force since December 1, 2005. According to Article 3 of the Guarantee of Workers' Retirement Benefits Act and Article 1 of the Addenda to the same Act (amended by January 27, 2005) and Article 2 of the Addenda to the Enforcement Decree of the same Act (amended by Presidential Decree September 29, 2010), the Guarantee of Workers' Retirement Benefits Act applies to all businesses or places of business that employ workers from December 1, 2005 to the whole business that employs four regular workers or less: Provided, That the Guarantee of Workers' Retirement Benefits Act shall apply to business that employs four regular workers or less from December 1, 2010.

① Article 11(1) of the Labor Standards Act provides that this Act shall apply to all businesses or workplaces which ordinarily employ not less than five workers. ② Article 11(3) of the Labor Standards Act provides that the method of calculating the number of workers ordinarily employed shall be prescribed by Presidential Decree in applying this Act. ③ Article 7-2(1) of the Enforcement Decree of the Labor Standards Act delegated by the Labor Standards Act provides that “the number of workers ordinarily employed” under Article 11(3) of the Labor Standards Act shall be calculated by dividing the annual number of workers ordinarily employed during the same period (where the business is less than one month from the date of establishment, referring to the period after the date of establishment of the business) by the number of working days during the same period before the date of occurrence of the reason for application of the Act (referring to the reason for the determination of whether the Act or this Decree applies, such as the payment of business suspension allowances, the application of working hours, etc.). Article 11(3) of the Labor Standards Act and Article 7-2 of the Enforcement Decree of the Labor Standards Act newly established on March 21, 20, 208.

2. Reviewing the above two laws on retirement allowances of workers, ① the Act on the Guarantee of Workers’ Retirement Benefits separately was enacted to determine matters necessary for the establishment and operation of the retirement benefits system, and the Act on the Guarantee of Workers’ Retirement Benefits applies to the employer’s obligation to pay retirement allowances and punishment for violation thereof from December 1, 2005, which was its enforcement date; ② the Act on the Guarantee of Workers’ Retirement Benefits applies to the business that employs four or less regular employees from December 1, 2010, unlike the Act on the Guarantee of Workers’ Retirement Benefits, ③ the provisions of Article 11(3) of the Labor Standards Act and Article 7-2 of the Enforcement Decree of the Labor Standards Act are newly established after the enforcement of the Act on the Methods of Calculating Workers’ Retirement Benefits. The Act also provides for the method of calculating the number of regular employees when applying the Labor Standards Act even under the language of the Act, ④ The calculation of the retirement benefits for one month prior to the date of retirement benefits under the Act on the Guarantee of Workers’ Retirement Benefits cannot be deemed as being unreasonable in light of the purport of Article 7-2 of the Act.

Therefore, the number of regular workers in order to determine the existence of the obligation to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act shall be calculated on the basis of the total period of service of the relevant worker. Here, the term "regularly" refers to situations where the number of workers falls short of five in time and the number of workers falls short of five in terms of time, and it constitutes more than five in a state objectively determined by social norms. It is interpreted that such term includes not only the continuous workers in the relevant workplace but also the daily workers employed for that time (see Supreme Court Decision 2008Do364, Mar. 27, 2008).

3. The lower court: (a) based on the following circumstances, i.e., the Defendant employed Nonindicted 1, 2, and 3 as a permanent worker from November 2007 to September 2008; (b) employed Nonindicted 4, 5, and 6 as a daily worker on November 2007; (c) employed Nonindicted 7, 5, and 8 as a daily worker on April 2008; (d) employed Nonindicted 9, 10 as a daily worker on May 208; and (e) employed Nonindicted 9, and 9, and 11 as a daily worker on August 9, 208; and (e) determined that the Defendant’s daily worker was on daily basis for at least five full-time workers at the place of work; and (e) determined that the Defendant’s daily worker was on daily basis and was on daily basis for at least five (3) more than six (5) employees at the place of work, other than that of the instant case’s cargo delivery; and (e) found that the Defendant’s cargo delivery was necessary for at least two (5) five (2) employees.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and there were no errors by misapprehending the legal principles on the calculation of the number of regular workers.

4. Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, only a case on which death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been pronounced may be appealed on the ground that the judgment of the court below affected the conclusion of the judgment or that the amount of the punishment has been extremely unreasonable. Thus, in this case where a fine is imposed against the defendant, the argument that the punishment is too unreasonable is not a legitimate ground for appeal

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

Justices Park Poe-young (Presiding Justice)