[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Attorney Park Hyung-il and 1 other
[Judgment Below] Chuncheon District Court Decision 2005No257, decided October 21, 2005
[Order]
The judgment below and the judgment of the first instance are both reversed. The defendant is granted a dismissal of prosecution (免訴).
[Reasoning]
1. As to the second ground of appeal
The main text of Article 36 of the Labor Standards Act (근로기준법) provides for the duty to clear monetary obligations, stating that "where a worker dies or retires, the employer shall pay wages, compensation, and any other money and valuables within 14 days from the date the cause for payment arose." This provision is intended to prevent a situation in which, after the employment relationship ends due to the worker's death or retirement, if the wages and other money and valuables that the worker is naturally entitled to receive are not promptly paid, the worker may be unduly forced to remain bound to the employer, such as by staying at the workplace in order to receive the money, and the livelihood of the worker and the worker's family may be threatened; moreover, as time passes, the risk of non-payment of the money and valuables increases. On the other hand, the main text of Article 42, Paragraph 2 of the Labor Standards Act provides for the principle of periodic payment, stating that "wages shall be paid at least once a month on a fixed date." This provision is intended to prevent the employer from paying wages irregularly or from failing to pay them for a long period of time, which would prevent the worker from securing sufficient wages necessary for maintaining a livelihood, thereby promoting the stability of the worker's livelihood.
Considering comprehensively the content and timing of performance of the obligations imposed on the employer by the above provisions of the Labor Standards Act, as well as their legislative purposes, the offense under Article 112 and Article 36 of the Labor Standards Act and the offense under Article 112 and Article 42 of the Labor Standards Act should be regarded as being in a relationship of substantive concurrence (실체적 경합관계). Therefore, with respect to unpaid wages that had already accrued before the worker's death or retirement, the offense under Article 112 and Article 36 of the Labor Standards Act may be established separately from the offense under Article 112 and Article 42 of the Labor Standards Act. The argument in this ground of appeal, which is based on a different view, cannot be accepted.
2. As to the first ground of appeal
The subject of the offense under Article 112 and Article 36 of the Labor Standards Act is the employer. Article 15 of the Labor Standards Act provides that "employer" means the business owner or a person responsible for the management of the business, or any other person who acts on behalf of the business owner with respect to matters concerning workers. Here, "a person responsible for the management of the business" refers to a person who bears responsibility for the general management of the business, who has received comprehensive delegation from the business owner over all or part of the management of the business, and who represents or acts as an agent for the business externally (see Supreme Court Decision 97Do813, decided November 11, 1997, among others), and "any other person who acts on behalf of the business owner with respect to matters concerning workers" refers to a person who has been granted certain authority and responsibility by the business owner with respect to matters such as the 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 88Nu6924, decided November 14, 1989).
According to the record, the following facts may be established: the defendant operated a heavy equipment rental business, including cranes, under the trade name "(trade name omitted) Crane" in Chuncheon City, (detailed address omitted), from around December 7, 1994; Nonindicted Person 1 worked as the defendant's assistant around 1997, learning crane operation skills, and obtained a crane operator's license around September 1997; when Nonindicted Person 2 asked the defendant around May 1999 to manage and operate his own 20-ton crane (hereinafter "Crane No. 1"), the defendant, after consulting with Nonindicted Person 2, hired Nonindicted Person 1 as the operator of Crane No. 1 and handled matters such as work instructions, dispatch, and work management for him, while also holding a bankbook and seal in the name of Nonindicted Person 2, managing the operating profits of Crane No. 1, paying Nonindicted Person 1's wages, and distributing the remainder to Nonindicted Person 2, thereby effectively overseeing the overall business of Crane No. 1; at the time, Nonindicted Person 3, after completing business registration in the name of his wife, Nonindicted Person 4, under the trade name "(trade name omitted) Construction" (also known as ○○ Crane), was operating a rental business with two cranes (one 25-ton and one 50-ton, the 25-ton one being referred to as "Crane No. 2") registered likewise in the name of Nonindicted Person 4, at (trade name omitted) Crane; when Nonindicted Person 2 stated in early March 2000 that he would operate Crane No. 1 himself, Nonindicted Person 1 was placed in a position where he would have to give up operating Crane No. 1, and coincidentally, since the position of operator for Crane No. 2, owned by Nonindicted Person 3, was vacant, Nonindicted Person 1, through the defendant's arrangement, decided around March 5, 2000 to move to (trade name omitted) Construction, operated by Nonindicted Person 3, and after undergoing the hiring process, including submitting a handwritten resume and executing an annual salary contract, began working as the operator of Crane No. 2, to which he was dispatched, from the following day, and retired around July 11, 2002; (trade name omitted) Construction, operated by Nonindicted Person 3, shared an office with (trade name omitted) Crane, operated by the defendant, but was formally a separate business entity with its own business registration, and profit management and cost bearing in business operations were also conducted separately, with Nonindicted Person 3 paying the defendant 300,000 to 400,000 won per month in return for using the office of (trade name omitted) Crane; while Nonindicted Person 1 was operating Crane No. 2, withholding of his wage income tax was carried out by (trade name omitted) Construction, and although the defendant or his employees occasionally and temporarily handled work instructions, dispatch management, and work management for Nonindicted Person 1 when Nonindicted Person 3 was away, such matters were mainly handled by Nonindicted Person 3 except in such cases; and the unpaid wages stated in the charged facts accrued over several months while Nonindicted Person 1 was operating Crane No. 1, owned by Nonindicted Person 2.
Given the above facts, (trade name omitted) Construction, operated by Nonindicted Person 3, and (trade name omitted) Crane, operated by the defendant, merely shared the same office, while having separate business registrations, processing operating profits and expenses on their own respective accounts, and the defendant did not receive comprehensive delegation from Nonindicted Person 3 over all or part of the management of (trade name omitted) Construction's business, nor did he represent or act as an agent for the business externally. Therefore, from the time Nonindicted Person 1 underwent the certain hiring process and moved to (trade name omitted) Construction to begin operating Crane No. 2, the defendant cannot be considered the business owner or the person responsible for the management of the business with respect to the operation of Crane No. 2. Furthermore, there is no evidence to establish that the defendant was granted certain authority and responsibility by Nonindicted Person 3, the business owner of (trade name omitted) Construction, with respect to matters such as the determination of working conditions, including Nonindicted Person 1's personnel affairs, wages, welfare, and labor management, or the issuance of work-related orders or supervision and direction; rather, during the period when Nonindicted Person 1 operated Crane No. 2, withholding of his wage income tax was carried out by (trade name omitted) Construction. Although the record does show that, at (trade name omitted) Crane, the defendant was referred to as "president" and Nonindicted Person 3 as "chairman," and that the defendant or his employees occasionally handled Nonindicted Person 3's business affairs on his behalf, this appears to be attributable not to a relationship of work-related supervision and direction between the defendant and Nonindicted Person 3, or to the defendant having been granted certain authority and responsibility by Nonindicted Person 3, but rather to mutual cooperation in business affairs between the two persons who shared the same office. Accordingly, considering these various circumstances comprehensively, it is difficult to view the defendant as having been in the position of employer with respect to Nonindicted Person 1 from the time Nonindicted Person 1 began operating Crane No. 2, owned by Nonindicted Person 3.
Meanwhile, the offense under Article 112 and Article 36 of the Labor Standards Act is established at the time 14 days elapse from the date the cause for payment of wages, etc. arose due to the worker's death or retirement (see Supreme Court Decision 94Do1477, decided November 10, 1995, among others), and the statute of limitations therefor is 3 years pursuant to Article 249, Paragraph 1, Item 5 of the Criminal Procedure Act (형사소송법). The defendant's offense in this case of violating the duty to clear the unpaid wages owed to Nonindicted Person 1 was established around March 18, 2000, when 14 days had elapsed from around March 4, 2000, the date on which Nonindicted Person 1 retired from the defendant's workplace, and since the prosecution in this case was filed on November 26, 2003, more than 3 years after that date, this falls under a case in which the statute of limitations has been completed.
Nevertheless, the court below erred in finding that "even after March 4, 2000, the defendant remained in the position of employer with respect to Nonindicted Person 1, and only came to be released from that position when Nonindicted Person 1 finally retired on July 11, 2002," which constitutes an unlawful act affecting the outcome of the judgment, by either violating the rules of evidence and erroneously finding the facts, or by misapprehending the legal principles concerning the concept of employer under the Labor Standards Act and the offense of violating the duty to clear monetary obligations. The argument in the ground of appeal pointing this out is well-founded.
3. Accordingly, the judgment below is reversed, and since this Court deems it sufficient to render judgment directly, this Court renders judgment directly pursuant to Article 396, Paragraph 1 of the Criminal Procedure Act.
A. The gist of the defendant's grounds of appeal is as follows: "The defendant is not the employer bearing the duty to clear monetary obligations owed to Nonindicted Person 1, and at the very least, was not in the position of employer with respect to Nonindicted Person 1 after March 4, 2000; therefore, this prosecution, filed more than 3 years after that date, falls under a case in which the statute of limitations has been completed. Furthermore, with respect to the unpaid wages in this case, Article 112 and Article 42, Paragraph 2 of the Labor Standards Act, rather than Article 112 and Article 36, should be applied, and since the date on which the obligation to pay arose was, at the latest, around March 2000, this likewise falls under a case in which the statute of limitations has been completed; nevertheless, the first instance court's finding of guilt as to the charged facts in this case constitutes an unlawful act, including a misapprehension of the legal principles concerning the offense of violating the duty to clear monetary obligations under the Labor Standards Act."
B. As examined above in the judgment on the grounds of appeal, the argument that "Article 112 and Article 42, Paragraph 2 of the Labor Standards Act should be applied to the offense in this case" is without merit; however, the argument in the grounds of appeal that "since the defendant was no longer in the position of employer with respect to Nonindicted Person 1 after around March 4, 2000, this prosecution falls under a case in which the statute of limitations has been completed" is well-founded. Accordingly, pursuant to Article 364, Paragraph 6 of the Criminal Procedure Act, the judgment of the first instance is reversed, and the following judgment is rendered anew.
The gist of the charged facts in this case is as follows: "The defendant, as the representative of (trade name omitted) Crane, employs 2 regular workers and operates a heavy equipment rental business; the defendant failed to pay 1,997,000 won in unpaid wages accrued from around 1999 to around March 4, 2000, owed to Nonindicted Person 1, a worker who worked as an operator at the said (trade name omitted) Crane from May 5, 1999 and retired on July 11, 2002, within 14 days from the date the cause for payment arose, namely the aforementioned date of retirement, without any agreement between the parties to extend the payment deadline."
Upon examination, since the statutory penalty for the above offense under Article 112 and Article 36 of the Labor Standards Act is imprisonment for not more than 3 years or a fine of not more than 20,000,000 won, the statute of limitations is 3 years pursuant to Article 249, Paragraph 1, Item 5 of the Criminal Procedure Act. Meanwhile, the above offense is established at the time 14 days elapse from the date the cause for payment of wages, etc. arose. As noted above, Nonindicted Person 1 retired from the defendant's workplace around March 4, 2000, and since this prosecution was filed more than 3 years after that date, it falls under a case in which the statute of limitations has been completed. Accordingly, a dismissal of prosecution (免訴) is rendered pursuant to Article 326, Item 3 of the Criminal Procedure Act.
For the foregoing reasons, by the unanimous opinion of the participating Justices, judgment is rendered as set forth in the Order.
Justice Ko Hyun-cheol (Presiding Justice), Kang Shin-wook, Yang Sung-tae, Kim Ji-hyung (Justice in charge)