[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Kim Jeong-ho and 2 others, Attorneys of Daeryuk Aju LLC
[Lower Court Judgment] Uijeongbu District Court Judgment 2014No369, decided December 5, 2014
[Order]
The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Uijeongbu District Court.
[Reasoning] The grounds of appeal are examined (the contents of each supplemental brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal are examined to the extent that they supplement the grounds of appeal).
1. Summary of the facts charged
The Defendant, as the representative partner of Non-Indicted Company 1, a limited partnership company (hereinafter “the Company”), is an employer who operates a taxi transportation business employing 76 regular employees, and as indicated in the attached list to the judgment of the court below, failed to pay wages of at least the minimum wage amount to workers subject to the Minimum Wage Act (최저임금법), namely Non-Indicted 2 and 22 other taxi driver employees of the Company, in the total amount of KRW 49,136,961 below the minimum wage.
2. Judgment of the court below
The court below reversed the first instance judgment, which had found the above charged facts not guilty, and found the Defendant guilty, on the following grounds.
A. When the Minimum Wage Act was amended so that Article 6(5) excluded “wages based on production output” from the scope of wages included in the minimum wage for workers engaged in driving duties in the general taxi transportation business (hereinafter “the special provision at issue”), the Company, in order to avoid the fixed wage amount falling below the minimum wage, amended its rules of employment twice to shorten the existing prescribed working hours, even though the actual working hours remained unchanged from before (hereinafter the amended rules of employment are referred to as the “First Amended Rules of Employment” and the “Second Amended Rules of Employment,” respectively, and the rules of employment prior to amendment are referred to as the “Prior Rules of Employment”).
B. This was not a measure to actually increase the proportion of fixed wages so as not to fall below the minimum wage in accordance with the purpose of the amendment of the Minimum Wage Act, but was merely a measure designed to make it appear, in form and appearance only, that wages of at least the minimum wage were being paid, by leaving the proportion of fixed wages almost unchanged while setting working hours as a working condition that were markedly shorter than the actual working hours.
C. Even if the taxi driver employees consented thereto, the rules of employment amended to shorten the prescribed working hours as described above were intended to circumvent the Minimum Wage Act, which is a mandatory provision, and are therefore invalid as being in violation of the Minimum Wage Act.
3. Judgment of the Supreme Court
A. Comprehensively considering the content and system of the relevant provisions of the Constitution and the Minimum Wage Act, the legislative purpose and legislative history of the special provision at issue, the purport of the provisions of the Passenger Transport Service Act (여객자동차 운수사업법) and the public nature of the general taxi transportation business, and the circumstances before and after the agreement to shorten the prescribed working hours, among other factors, where, under a fixed quota system (사납금제), with the intent to avoid the fixed wage excluding wages based on production output falling below the minimum wage, an employer agrees with a taxi driver employees’ labor union to shorten only the prescribed working hours, without any change in the actual work pattern or operating hours, in order to increase the nominal amount of the hourly fixed wage calculated on the basis of the prescribed working hours, such agreement must be regarded as invalid as an act in circumvention of the law intended to evade the application of, inter alia, the special provision at issue under the Minimum Wage Act, which is a mandatory statute. This legal principle applies equally where the employer amends the rules of employment to shorten the prescribed working hours with the consent of a labor union organized by a majority of the taxi driver employees or with the consent of a majority of the employees (see Supreme Court en banc Decision 2016Da2451, decided April 18, 2019).
Meanwhile, if there exists a ground for disputing the existence of an obligation to pay the wage difference falling short of the minimum wage amount, it must be found that there was a justifiable reason for the employer's failure to pay such wages, and thus it is difficult to recognize that the employer had the criminal intent required for the offense under Article 6(1) and Article 28 of the former Minimum Wage Act (before amendment by Act No. 11278 of February 1, 2012; hereinafter “the former Minimum Wage Act”). Whether there exists a ground for disputing the existence and scope of the obligation to pay the wage difference falling short of the minimum wage amount must be determined by comprehensively considering the basis for such payment obligation, the reasons for the employer's non-payment, the business purpose and scale of the company operated by the employer, and other various circumstances existing at the time the dispute over the existence and scope of the wage payment obligation arose. The mere fact that, because the provision on prescribed working hours in the collective agreement or rules of employment shortening the prescribed working hours is invalid as an act in circumvention of the law, it is subsequently found, upon calculation based on the existing prescribed working hours, that the employer paid wages less than the minimum wage amount, does not immediately warrant concluding that the employer had criminal intent for the offense under Article 6(1) and Article 28 of the former Minimum Wage Act (see Supreme Court Decision 2010Do14693, decided October 27, 2011).
B. Regarding the validity of the provision on prescribed working hours in the amended rules of employment
Examining the record in accordance with the above legal principles, the judgment of the court below, which found that the provision on prescribed working hours in the First Amended Rules of Employment and the Second Amended Rules of Employment constituted an act in circumvention of the law and was thus invalid, is justified.
C. Regarding whether the Defendant's criminal intent may be recognized
(1) According to the reasoning of the judgment of the court below and the evidence lawfully adopted by the court below, the following circumstances may be known.
(a) Despite the enforcement of the special provision at issue, if the existing prescribed working hours were maintained as is, the fixed wages that a general taxi transportation business operator would have to pay to taxi driver employees would rise sharply, thereby increasing the incentive to raise the quota amount (사납금), which is the main source of funding for the fixed wage; on the other hand, from the perspective of taxi driver employees under the fixed quota system, even if the fixed wage were raised to some extent, if the quota amount were increased, this would lead to a decrease in excess operating revenue, such that total income would not necessarily increase. As the interests of both sides regarding whether to increase the quota amount became intertwined, there arose cases in which labor-management agreements to shorten prescribed working hours were concluded, as a result of general taxi transportation business operators seeking ways to overcome the problem of conflict with the Minimum Wage Act without increasing the quota amount, while taxi driver employees sought ways to maintain excess operating revenue at the previous level while avoiding an increase in the quota amount.
The Company, which likewise operated under the fixed quota system, also amended its rules of employment successively to shorten the prescribed working hours, having obtained the voluntary consent of a majority of its taxi driver employees.
(b) Notwithstanding the shortening of the prescribed working hours, the fixed wages of the taxi driver employees, as ascertainable through the Second Amended Rules of Employment and the labor contracts linked thereto, increased somewhat compared to the time of the Prior Rules of Employment. Comparing the period of the Prior Rules of Employment with the period of the Second Amended Rules of Employment, it does not appear that the total income of the taxi driver employees particularly decreased either.
(c) As stated in the facts charged in this case, the Defendant's obligation to pay the wage difference falling short of the minimum wage amount is premised on the invalidity of the provisions on prescribed working hours in the First Amended Rules of Employment and the Second Amended Rules of Employment, and on the continued validity, in the employment relationship, of the provision on prescribed working hours in the Prior Rules of Employment. However, at the time, there existed no explicit guideline from the Ministry of Employment and Labor, nor any court judgment, regarding the validity of the provisions of the rules of employment that shortened the prescribed working hours with the consent of the taxi driver employees, following the enforcement of the special provision at issue.
(d) There is no material showing that, when calculated based on the prescribed working hours under the successively shortened rules of employment, the Defendant paid wages below the minimum wage amount as calculated accordingly.
(2) Examining these circumstances in light of the legal principles set forth above, it appears that, at the time, the Defendant could have believed that the provisions on prescribed working hours in the First Amended Rules of Employment and the Second Amended Rules of Employment, which shortened the prescribed working hours with the consent of a majority of the taxi driver employees, were valid, and thus that there was no obligation to pay the wage difference falling short of the minimum wage amount. This being so, it may be found that there existed a ground for the Defendant to dispute the existence of the obligation to pay the wage difference falling short of the minimum wage amount at issue in this case, and it must be found that there was a justifiable reason for the Defendant's payment of wages below the minimum wage amount to the taxi driver employees; therefore, it cannot be concluded that the Defendant had the criminal intent required for the offense under Article 6(1) and Article 28 of the former Minimum Wage Act.
(3) Nevertheless, the court below found the Defendant guilty of the facts charged in this case on the premise that the Defendant had criminal intent to commit the offense in this case. Such judgment of the court below contains an error that misapprehends the legal principles concerning the criminal intent required for the offense under Article 6(1) and Article 28 of the former Minimum Wage Act, or that violates the rules of logic and experience, thereby exceeding the limits of the principle of free evaluation of evidence, and this error affected the judgment.
4. Conclusion
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further hearing and determination. This Judgment is rendered as stated in the Order, by the unanimous opinion of the participating Justices.
Justice Min Yu-sook (Presiding Justice), Cho Hee-dae (Justice in Charge), Kim Jae-hyung, Lee Dong-won