[Defendant]
[Appellant] Prosecutor
[Judgment Below] Seoul Central District Court Decision 2006No2857, decided February 14, 2007
[Order]
The appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1.
Under Article 312(2) of the Criminal Procedure Act (형사소송법), a protocol of suspect interrogation prepared by an investigative agency other than a public prosecutor may be admitted as evidence only when the defendant, who was the suspect at the time, or defense counsel, acknowledges its contents in the course of trial preparation or at a trial date. This provision applies not only where the protocol of suspect interrogation concerning the defendant himself, prepared by an investigative agency other than a public prosecutor, is used as evidence of guilt, but also where the protocol of suspect interrogation concerning another defendant or suspect who is in a co-offender relationship with the defendant, prepared by an investigative agency other than a public prosecutor, is adopted as evidence of the defendant's guilt (see, e.g., Supreme Court en banc Decision 2003Do7185, decided July 15, 2004). Further, the phrase "acknowledges its contents" in the above provision does not mean that the statements recorded in the protocol of suspect interrogation are recorded as actually stated, but rather that the contents so stated conform to the actual facts (see, e.g., Supreme Court Decision 2005Do6271, decided May 25, 2006).
According to the reasoning of the judgment below, the lower court held as follows: Since the defendant has continuously denied the facts charged in this case from the first instance court onward, asserting that he did not have overall control of the business of the company in question, this must be understood as not acknowledging the contents of the statements in the respective protocols of suspect interrogation prepared by the special judicial police officer (labor inspector) concerning the defendant and the non-indicted person, which contain statements contrary to the defendant's above assertion. As for the fact that, according to the list of evidence attached to the case record, it is recorded that the defendant acknowledged the contents of the above respective protocols of suspect interrogation at the first trial date of the first instance, this is to be understood, in light of the circumstances of the defendant's statements, either as a clerical error, or as a case in which the protocol was erroneously drawn up recording as "acknowledgment of contents" the mere fact that the defendant acknowledged that such statements had been made. On these grounds, the lower court determined that the above respective protocols of suspect interrogation lack admissibility as evidence and cannot be used as evidence of guilt.
Upon examination in light of the above legal principles and the case record, the above determination of the lower court is justified, and there is no illegality such as violation of the rules of evidence as alleged in the grounds of appeal.
2.
The subject of the offense under Article 112 and Article 36 of the former Labor Standards Act (근로기준법, before its full amendment by Act No. 8372 on April 11, 2007) is the employer. Article 15 of the former Labor Standards Act provides that "employer" means a business owner or a person who manages the business, or other persons who act on behalf of the business owner in matters concerning workers. Here, "a person who manages the business" means a person who is responsible for the business management in general, who has been comprehensively delegated by the business owner with respect to the whole or part of the business management, and who represents or acts as agent for the business externally, while "other persons who act on behalf of the business owner in matters concerning workers" means persons who have been granted certain authority and responsibility by the business owner with respect to matters such as determination of working conditions, including personnel affairs, wages, welfare, and labor management of workers, or the issuance of work-related orders or supervision and direction (see Supreme Court Decision 2005Do8364, decided May 11, 2006).
In light of the circumstances set forth in its reasoning, the lower court held that the evidence cited to the effect that the defendant fell under the category of "employer" prescribed by the Labor Standards Act with respect to the unpaid wages could not be believed, that the other evidence submitted by the prosecutor was insufficient to establish this fact, and that there was no other evidence to establish it. On these grounds, the lower court determined that the facts charged in this case fell under a case where there was no proof of the criminal facts, and accordingly reversed the first instance judgment, which had found the defendant guilty, and rendered a judgment of acquittal. Upon examining the relevant evidence in light of the above legal principles and the case record, the above determination of the lower court is justified, and there is no illegality such as incomplete deliberation, violation of the rules of evidence, or misapprehension of the legal principles concerning the former Labor Standards Act and company law, as alleged in the grounds of appeal.
3. Accordingly, the opinions of the participating Justices being unanimous, the appeal is dismissed as stated in the Order.
Justice Lee Hong-hoon (Presiding Justice), Kim Young-ran (Justice in charge), Kim Hwang-sik, Ahn Dae-hee