[Defendant]
[Appellant] Defendant
[Lower Court Judgment] Seoul Southern District Court Decision 2005No976, decided April 19, 2006
[Order]
The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Southern District Court.
[Reasoning] The grounds of appeal are examined.
The court below, comprehensively considering the evidence it adopted, found the Defendant guilty of the charged violation of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, hereinafter "Trade Union Act"), on the premise that the collective bargaining agreement at issue in this case remained effective even after August 9, 2003, the expiration date of its term of validity. Upon examination of the record, the selection and evaluation of evidence, fact-finding, and determination made by the court below are found to be justified and acceptable, and there is no illegality such as insufficient deliberation, misapprehension of facts due to violation of the rules of evidence, or misapprehension of the legal principles concerning the effect of collective bargaining agreements, as argued in the grounds of appeal.
Furthermore, there is no material to support the Defendant's assertion that the collective bargaining agreement at issue in this case is invalid on the ground that it was concluded under duress, and the Defendant's assertion that the collective bargaining agreement is invalid because there is no certificate of report of the trade union likewise cannot be accepted.
However, prior to examining the ground of appeal concerning improper sentencing raised by the Defendant, upon ex officio review, it is found from the record that the Defendant was prosecuted for the criminal facts constituting violations of the Labor Standards Act (근로기준법) and the Trade Union Act. The first instance court found the Defendant guilty of the parts of the charges concerning violation of the Labor Standards Act relating to the failure to pay driving allowances to the non-indicted person, and sentenced the Defendant to a fine of KRW 100,000. As to the part concerning the failure to pay the January 2002 driving allowance to the non-indicted person, and the part—standing in a relationship of a single crime therewith—concerning the failure to pay monthly allowance and performance allowance to the non-indicted person, the first instance court rendered a judgment of not guilty on the ground that there was no proof of the crime. As for the charge of violation of the Trade Union Act, the first instance court likewise rendered, in the order of judgment, a judgment of not guilty on the ground that there was no proof of the crime. It is clear that only the prosecutor appealed against the not-guilty portion concerning the violation of the Trade Union Act among the first instance judgment.
If so, the portion of the first instance judgment concerning the violation of the Labor Standards Act, against which neither party appealed, became final and conclusive separately, and thus did not become a subject of adjudication in the court below, which was the appellate court (see Supreme Court en banc Decision 91Do1402, decided January 21, 1992; Supreme Court Decision 2005Do4478, decided December 23, 2005, etc.). Nevertheless, the court below mistakenly treated not only the portion concerning the violation of the Trade Union Act in the first instance judgment but also the portion concerning the violation of the Labor Standards Act as subjects of adjudication, and thereby reversed both the portion concerning the violation of the Trade Union Act and the portion concerning the violation of the Labor Standards Act which had been found guilty, and then, applying the first sentence of Article 37 and Article 38(1)(2) of the Criminal Code (형법) to these charged facts, imposed a single sentence. This constitutes an illegality affecting the judgment by adjudicating on a portion that was not subject to adjudication.
Therefore, without examining the remaining grounds of appeal raised by the Defendant, the judgment of the court below is reversed, and the case is remanded to the court below for further hearing and determination, the opinions of the participating Justices being unanimous, and it is so decided as stated in the Order.
Justice Yang Seung-tae (Presiding Justice), Kang Shin-uk (Justice in Charge), Ko Hyeon-cheol, Kim Ji-hyeong