[Defendant] A and 1 other
[Appellant] Defendants
[Defense Counsel] Attorney B
[Original Decision] Suwon District Court, Judgment of April 28, 1994, Case No. 94No51
[Order]
The original decision is reversed, and the case is remanded to the Panel Division of the Suwon District Court.
[Reasoning]
1. Before examining the grounds of appeal, the Court examines the matter ex officio.
Article 30 of the Labor Standards Act (근로기준법) provides that where a worker dies or retires, the employer shall pay wages, compensation, and all other monies within 14 days from the date the cause for payment arises. This provision is intended to promote the stability of living of retired workers and others by compelling the early settlement of legal relationships, while also granting the employer side a grace period necessary for such settlement. Accordingly, the offense under Article 109 of the Labor Standards Act arising from the nonpayment of such retirement allowances, etc. is established at the time 14 days have elapsed from the date the cause for payment arose. Therefore, where the employer is a corporation, in principle, the representative who holds the authority to make payment of the retirement allowance, etc. at the time the said 14 days elapse bears criminal responsibility for the nonpayment, and a representative who loses such payment authority due to retirement or other cause before the 14 days elapse shall not, absent special circumstances, bear such responsibility.
According to the record, it can be seen that while Defendant A was serving as the representative director of C Co., Ltd., the Suwon District Court rendered a decision commencing company reorganization proceedings against the said company on September 28, 1992, and Defendant D was appointed as the administrator (관리인) of the said company. Accordingly, Defendant A must be deemed to have lost the authority to manage and dispose of the business and property of the said company simultaneously with the said decision commencing reorganization proceedings. Therefore, among the amounts to be paid to each of the retired workers as stated in the facts charged against the said defendant, as to the portion for which 14 days elapsed from the date the cause for payment arose after the said decision commencing reorganization proceedings, the said defendant cannot be held criminally responsible for the nonpayment thereof. However, according to the reasoning of the original decision and of the first instance judgment cited therein, the court below found the defendant guilty even as to the nonpayment of wages or retirement allowances, etc. owed to the six workers, Non-Party E, F, G, H, I, and J, for whom 14 days had not yet elapsed from the date of retirement (the date the cause for payment arose) as of the time of the decision commencing reorganization proceedings, i.e., for whom the 14-day period elapsed only after the said decision commencing reorganization proceedings. This cannot but be said to constitute an error of misapprehending the legal principles set forth above, which affected the judgment.
Next, according to the record, it can be seen that Defendant D, having been appointed as administrator of the said company on September 28, 1992, pursuant to the Company Reorganization Act (회사정리법), performed his duties only until June 30, 1993, resigned on July 1, 1993, and did not perform the duties of administrator from that date onward. Accordingly, as to the portion of the amounts to be paid to each of the retired workers as stated in the facts charged in this case for which the cause of payment arose after the said date of resignation, or for which 14 days elapsed from the date the cause for payment arose after the said date of resignation, the said defendant must be deemed not to bear criminal responsibility for the nonpayment thereof. However, according to the reasoning of the original decision and of the first instance judgment cited therein, it is clear that the court below held the said defendant responsible even for the nonpayment of wages or retirement allowances, etc. owed to the twelve workers, Non-Party K, L, M, N, O, P, Q, R, S, T, U, and V, for whom the cause of payment arose after the said date of resignation, or for whom 14 days had not yet elapsed from the date of retirement (the date the cause for payment arose) as of the said date of resignation. This portion, too, must be said to constitute an error of misapprehending the same legal principles, which affected the judgment.
If so, the original decision, having imposed a single sentence upon regarding the defendants' violations of the Labor Standards Act as stated in the judgment as being in a relationship of substantive concurrence (실체적 경합) for each defendant, is already unlawful in this respect and cannot be sustained as it stands.
2. The Court examines the grounds of appeal of Defendant D.
According to the reasoning of the original decision, the court below rejected the said defendant's argument that his responsibility should be excused because, although he was appointed as administrator of the reorganization company in this case on September 28, 1992, and made his best efforts for the rehabilitation of the company, he was unable to pay the retirement allowances, etc. to the retired workers as stated in the facts charged because the company's production volume had already drastically decreased and its financial condition had already deteriorated. The court below found, upon comprehensive consideration of the evidence presented, that although the fund execution plan submitted to the court by the said defendant upon his appointment as administrator of the reorganization company had included in its calculation the funds necessary to pay the retirement allowances to the retirees in this case, he did not execute such payment, and that, nevertheless, he had made no agreement whatsoever with the retirees to extend the deadline for payment of the retirement allowances. Based on these findings, the court below held that it could not be found that there existed unavoidable circumstances such that the said defendant, as administrator of the reorganization company, had made his best efforts to pay the retirement allowances to the workers who retired during his term of office but was utterly unable to pay the retirement allowances within the payment deadline due to poor management and financial difficulties, such that the said defendant's criminal responsibility under the Labor Standards Act should be excused.
However, even if, as found by the court below, the fund execution plan submitted to the court by the said defendant as administrator of the reorganization company had included in its calculation the funds necessary for the payment of the retirement allowances, etc. to the retirees in this case, such circumstance alone cannot lead to the conclusion that the funds necessary for the payment of the said retirement allowances, etc. had actually been secured or could have been secured. Therefore, if it is found that there existed unavoidable circumstances such that, due to the deterioration of the financial situation as alleged by the said defendant, it was utterly impossible to secure the funds necessary for the payment of the said retirement allowances, etc., then, even if the funds necessary for the payment of the said retirement allowances, etc. had been formally included in the calculation of the fund execution plan of the reorganization company submitted to the court, and even if there had been no agreement with the retirees to extend the deadline for payment thereof, the said defendant cannot be held criminally responsible for the nonpayment.
However, upon examining the record, there is no material whatsoever from which the specific contents of the fund execution plan, which the said defendant is alleged to have submitted to the court as found by the court below, could be ascertained, nor can any evidence be found to establish that the funds necessary for paying the retirement allowances, etc. in accordance with the said fund execution plan had actually been secured or could have been secured. On the other hand, it can be seen that the said defendant has consistently and specifically alleged, from the prosecutorial stage through to the court below, various unavoidable circumstances to the effect that, after being appointed as administrator of the reorganization company, under the supervision of the court and in agreement with the labor union, he made his best efforts—prioritizing the prevention of the reorganization company's bankruptcy by disbursing only the minimum costs necessary for the continued operation of the factory, paying employees' wages with the remaining funds, and even providing his own personal property as security—but was unable to pay the said retirement allowances, etc. due to the limits of the financial situation. Moreover, evidence consistent with these allegations can be discerned in the record. Accordingly, the court below ought to have further clarified these points and then determined whether the said defendant bore criminal responsibility; however, without doing so, it lightly rejected the said defendant's argument on the grounds stated alone. Thus, it cannot be said that the original decision is not tainted with an error of failing to properly conduct its examination as a result of misapprehending the legal principles concerning the grounds for excusing responsibility for the offense under Article 109 of the Labor Standards Act arising from the nonpayment of retirement allowances, etc., and such error is clear to have affected the judgment. Therefore, the argument in the grounds of appeal pointing this out is well-founded. The original decision as to the said defendant cannot be sustained in this respect as well.
3. Therefore, the opinions of the Justices concerned being unanimous to reverse the original decision and remand the case to the court below for further examination and determination, it is decided as stated in the Order.
Justice Park Man-ho (Presiding Justice), Park Jun-seo, Kim Hyung-seon (Justice in Charge), Lee Yong-hun