Case of Assistance by a Corporate Law Specialist Attorney | Case Brought to Trial Over Non-Payment of Severance Pay, Resulting in ‘Dismissal of Prosecution’ Through a Settlement

This case had a structure in which the possibility of criminal punishment was difficult to exclude, in that the amount of severance pay was considerable and there was no clear written agreement regarding an extension of the payment deadline.

Even after the trial commenced, the dispute between the parties had not been completely resolved, and the ripple effect on the overall operation of the company in the event of a finding of guilt was also not insignificant.

Accordingly, the client requested assistance from the corporate law specialist attorney in order to seek a means of substantively concluding the case at the trial stage.

The corporate law specialist attorney organized the course of the settlement that had been discussed but not finalized, and then continued the negotiation centering on the remaining issues.

In this process, the attorney conducted the negotiation in a direction that would minimize the possibility of additional disputes by readjusting the amount of payment, the method of payment, and the scope of the settlement.

As a result, the affected worker clearly expressed the intent not to seek criminal punishment on the condition of an additional payment.

After the settlement was reached, the corporate law specialist attorney determined that it was important whether that content could have effect in the trial.

Accordingly, the attorney refined the wording of the settlement agreement and the statement of non-desire for punishment to suit the criminal proceedings, and also supplemented the necessary attached materials.

Through this, the attorney ensured that the sincerity and finality of the settlement were clearly conveyed to the court.

The corporate law specialist attorney conducted a legal review, focusing on the fact that this case was a matter in which the maintenance of prosecution is limited according to the intent of the victim.

The attorney organized the opinion centering on the point that, once the victim's intent not to seek punishment had been lawfully submitted, the requirements for dismissal of prosecution were satisfied.

As a result, the attorney was able to assist so that the court could make a judgment that procedurally concluded the case.

According to Article 17, Paragraph 2 of the Employee Retirement Benefit Security Act, retirement benefits must in principle be paid within 14 days from the date of retirement.

If payment is delayed in the absence of a justifiable reason and an agreement between the parties, imprisonment for not more than three years or a fine not exceeding 30 million won may be imposed.

However, a violation of the Employee Retirement Benefit Security Act is prescribed as a crime not punishable against the victim's will, for which prosecution cannot be instituted against the express intent of the victim.

In other words, where the affected worker has clearly expressed the intent not to seek punishment, the criminal proceedings may be concluded with a dismissal of prosecution.

When a complaint to the Labor Office or criminal proceedings arise due to the non-payment of severance pay, it is important to first confirm the following matters.

1. Confirmation of whether it constitutes a crime not punishable against the victim's will

2. Review of the possibility and scope of a settlement