[Defendant]
Defendant
[Appellant]
Defendant
[Lower Court Judgment]
Changwon District Court Judgment of July 23, 2009, 2008No1594, 2008No1749 (Consolidated)
[Order]
The guilty part of the judgment below is reversed, and this part of the case is remanded to the Panel Division of the Changwon District Court.
[Reasoning]
The grounds of appeal are examined.
The interpretation of penal statutes must be strict, and excessively expanding the meaning of the express provisions in a direction unfavorable to the defendant, or interpreting them by analogy, is contrary to the principle of nulla poena sine lege and is not permitted (see, e.g., Supreme Court en banc Decision 2006Do4549, delivered on November 16, 2006).
The offense under Article 112(1) and Article 36 of the Labor Standards Act (Labor Standards Act, 근로기준법) (referring to the version before the full amendment by Act No. 8372 of April 11, 2007; hereinafter the same) is established when the employer fails to fulfill, within 14 days from the date the obligation to pay arises, the obligation to pay money such as retirement pay to an employee upon retirement, etc., as prescribed in Article 36 of the same Act. Among these, the employee's right to claim retirement pay arises on the condition of the lawful termination of the employment relationship through retirement. Therefore, as long as the employment contract validly continues to exist, there is no room for the employer's obligation to pay retirement pay to arise, and thus the above offense cannot be established; the same applies even where the employer cancels the dismissal disposition, thereby retroactively extinguishing the effect of the dismissal and the resulting obligation to pay retirement pay.
The gist of the part of the facts charged against the Defendant in this case concerning the violation of the Labor Standards Act due to non-payment of retirement pay to the non-indicted person is as follows: the Defendant, who was the head of the cooperative referred to in the judgment and thus in the position of employer, committed the offense of violation of the above Labor Standards Act by failing to pay, within 14 days from the date of retirement and without an agreement to extend the payment deadline, the retirement pay of the non-indicted person, who had joined the said cooperative on April 1, 1991, worked as acting general affairs manager, and was dismissed on December 27, 2006.
With respect to the above facts charged, the court below found as follows: based on a resolution of the personnel committee of the said cooperative, a disciplinary dismissal disposition was issued against the non-indicted person around December 27, 2006; however, in accordance with the reinstatement order issued on May 18, 2007 by the Gyeongnam Regional Labor Relations Commission pursuant to the non-indicted person's application for remedy filed in objection thereto, the dismissal disposition of December 27, 2006 against the non-indicted person was cancelled around July 5, 2007, and an order of reinstatement was issued, after which, around July 9, 2007, a disposition of dismissal ex officio was finally issued; and prior to that, retirement pay had been paid to the non-indicted person around January 12, 2007. As to the Defendant's argument that the offense of violation of the Labor Standards Act, which presupposes the validity of the retirement disposition of December 27, 2006, could not be established, the court below rejected the Defendant's argument on the ground that the circumstance that the dismissal disposition was cancelled due to the employee's application for remedy was merely a circumstance arising after the establishment of the offense and thus did not affect the establishment of the offense, and found this part of the facts charged guilty.
However, according to the legal principle set forth above, the offense of violation of the Labor Standards Act due to non-payment of retirement pay to an employee who retired due to disciplinary dismissal must be understood as being established on the basis of the constituent elements consisting of the existence of a lawful dismissal disposition, the resulting arising of the obligation to pay retirement pay, and the continued existence of its effect. Inasmuch as the Defendant cancelled the dismissal disposition of December 27, 2006 against the above non-indicted person in accordance with the reinstatement order of the Gyeongnam Regional Labor Relations Commission and issued an order of reinstatement, the effect of the said dismissal and the resulting obligation to pay retirement pay were retroactively extinguished, and thus it must be said that there is also no proof of the constituent facts of the offense of violation of the Labor Standards Act, which presupposes the said obligation to pay retirement pay.
Nevertheless, the court below's determination that the mere circumstance that the cancellation of the dismissal disposition and the reinstatement order occurred after the original dismissal disposition did not affect the establishment of the said offense constitutes an error of misunderstanding the legal principles concerning the offense of violation of the Labor Standards Act due to non-payment of retirement pay, and a failure to conduct the necessary examination.
The argument in the grounds of appeal pointing this out is well-founded.
The arguments in the grounds of appeal concerning the remaining facts charged, which the court below found guilty, merely find fault with the selection and evaluation of evidence or the finding of facts, which fall within the exclusive authority of the court below as the fact-finding court, or merely assert, on the premise of facts different from those found by the court below, that there was an error in the court below's determination of law; therefore, they do not constitute legitimate grounds of appeal.
Accordingly, the guilty part of the judgment below is reversed (since a single sentence was imposed for the offenses against the Defendant set forth in the judgment that the court below found guilty, on the basis that they are in a concurrent-crime relationship under the first clause of Article 37 of the Criminal Act, the entire guilty part must be reversed), and this part of the case is remanded to the court below for further examination and determination. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Yang Chang-soo (Presiding Justice), Yang Seung-tae, Kim Ji-hyeong (Justice in charge), Jeon Su-an