[Labor Attorney Employer Defense Case] Defense Resulting in a Fine for Multiple Charges Including Violation of the Labor Standards Act

CONTENTS

1. Why the Employer Client Sought a Labor Attorney
- - Labor Attorney Confirms the Client's Multiple Violations Including the Labor Standards Act
2. Labor Attorney: "The Efforts Made to Pay the Employee's Wages and Severance Pay Should Be Taken Into Account"
3. Reviewing the Labor Standards Act and Related Statutes With a Labor Attorney
4. Court Imposes a Minor Fine, Taking Into Account the Financial Difficulty and Other Factors Argued by the Labor Attorney

1. Why the Employer Client Sought a Labor Attorney

The client, an employer who ran a company, urgently came to a Daeryun (LLC) labor attorney.

The client was an employer who ran a manufacturing business with full-time employees, but he dismissed an employee and failed to pay the wages and severance pay owed to the employee after retirement, and as a result a lawsuit was brought against him.

Having failed to pay tens of millions of won in wages, the client was in a poor situation, having violated the Labor Standards Act and several other laws.

The client entrusted his case to our Daeryun labor attorney in order to receive the lightest sentence possible.

Labor Attorney Confirms the Client's Multiple Violations Including the Labor Standards Act

The Daeryun labor attorney confirmed that the client had violated the Labor Standards Act, the Employee Retirement Benefit Security Act, and several other laws.

There were, however, circumstances worth considering, such as the fact that the client's business had run into trouble and was experiencing financial difficulty and the fact that he had not intentionally withheld the wages and severance pay, and these points had to be emphasized as much as possible in order to reduce the sentence.

2. Labor Attorney: "The Efforts Made to Pay the Employee's Wages and Severance Pay Should Be Taken Into Account"

Through detailed consultation with the client, the Daeryun labor attorney assembled a team of attorneys made up of multiple experienced specialists with extensive experience in such cases.

The Daeryun labor attorney requested a lenient disposition, pointing to the fact that the defendant had made efforts to pay the employee's wages, severance pay, and so on and that there were unavoidable circumstances such as financial difficulty.

■ The defendant made efforts to pay wages, severance pay, and so on.

■ The defendant's business ran into trouble, and he was experiencing financial difficulty.

3. Reviewing the Labor Standards Act and Related Statutes With a Labor Attorney

The labor attorney explained that, in the client's case, given the failure to settle monies owed, the failure to pay advance notice of dismissal allowance, the failure to pay severance pay, and the relationship between the offense of violating the Labor Standards Act arising from the failure to settle monies owed and the offense of violating the Employee Retirement Benefit Security Act, the punishment was expected to be imposed under the heavier penalty prescribed for the violation of the Labor Standards Act.

Labor Standards Act Article 9 (Exclusion of Intermediary Exploitation) No person shall, except as provided by law, intervene for profit in the employment of another person or acquire profit as an intermediary.

Labor Standards Act Article 26 (Advance Notice of Dismissal) An employer who intends to dismiss an employee (including dismissal for managerial reasons) shall give advance notice at least 30 days in advance, and where the employer fails to give advance notice 30 days in advance, the employer shall pay ordinary wages for 30 days or more. This shall not apply, however, in any of the following cases.

1. Where the period during which the employee has continuously worked is less than three months

2. Where it is impossible to continue the business due to a natural disaster, an incident, or any other unavoidable cause

3. Where the employee has intentionally caused serious disruption to the business or inflicted property damage, and this falls under a cause prescribed by Ordinance of the Ministry of Employment and Labor

Labor Standards Act Article 36 (Settlement of Monies) Where an employee dies or retires, the employer shall pay the wages, compensation, and all other monies within 14 days from the date the cause for payment arises. Where there are special circumstances, however, the due date may be extended by agreement between the parties.

Labor Standards Act Article 109 (Penal Provisions) (1) A person who violates Article 36, 43, 44, 44-2, 46, 51-3, 52 (2) 2, 56, 65, 72, or 76-3 (6) shall be punished by imprisonment for not more than three years or a fine not exceeding 30 million won.

(2) A person who violates Article 36, 43, 44, 44-2, 46, 51-3, 52 (2) 2, or 56 may not be prosecuted against the express will of the victim.

Labor Standards Act Article 110 (Penal Provisions) A person who falls under any of the following shall be punished by imprisonment for not more than two years or a fine not exceeding 20 million won.

1. A person who violates Article 10, 22 (1), 26, 50, 51-2 (2), 52 (2) 1, 53 (1) and (2), the main text of paragraph (4) and paragraph (7) of the same Article, 54, 55, 59 (2), 60 (1), (2), (4), and (5), 64 (1), 69, 70 (1) and (2), 71, 74 (1) through (5), 75, 78 through 80, 82, 83, and 104 (2)

2. A person who violates an order under Article 53 (5)

Employee Retirement Benefit Security Act Article 9 (Payment of Severance Pay, etc.) (1) Where an employee retires, the employer shall pay the severance pay within 14 days from the date the cause for payment arises. Where there are special circumstances, however, the due date for payment may be extended by agreement between the parties.

Employee Retirement Benefit Security Act Article 44 (Penal Provisions) A person who falls under any of the following shall be punished by imprisonment for not more than three years or a fine not exceeding 30 million won. In the cases of subparagraphs 1 and 2, however, prosecution may not be brought against the express will of the victim.

1. A person who fails to pay severance pay in violation of Article 9 (1)

Criminal Act (Penal Code) Article 40 (Conceptual Concurrence) Where a single act constitutes several offenses, the punishment prescribed for the most serious offense shall be imposed.

Criminal Act (Penal Code) Article 50 (Severity of Punishment) (1) The severity of punishment shall follow the order of the subparagraphs of Article 41. Between life imprisonment without labor and imprisonment with labor for a definite term, however, life imprisonment without labor shall be deemed the more severe, and where the maximum term of imprisonment without labor for a definite term exceeds the maximum term of imprisonment with labor for a definite term, imprisonment without labor for a definite term shall be deemed the more severe.

(2) Among punishments of the same kind, the one with the longer maximum term and the larger maximum amount shall be deemed the more severe, and where the maximum term or the maximum amount is the same, the one with the longer minimum term and the larger minimum amount shall be deemed the more severe.

(3) Except for paragraphs (1) and (2), the severity shall be determined by considering the nature of the offense and the circumstances of the crime (犯情).

4. Court Imposes a Minor Fine, Taking Into Account the Financial Difficulty and Other Factors Argued by the Labor Attorney

The court, accepting the arguments of the Daeryun Law Firm labor attorney, rendered a judgment stating, "The defendant is sentenced to a fine of 5 million won. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 100,000 won into one day. Provisional payment of an amount equivalent to the above fine is ordered."

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