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  • "In this case, the aircraft is not considered a “military aircraft” under the Act.

    Under Subparagraph 1, Article 2 of the Military Aircraft Airworthiness Certification Act, “military aircraft” is defined as aircraft used by the military or aircraft for military use to be exported overseas. Also, Subparagraph 1, Article 2 of the Act on the Operation, etc. of Military Aircraft defines “military aircraft” as airplanes, helicopters and other aircraft used by the military. However, Article 3 (1) of the Aviation Safety Act states that “This Act shall not apply to military aircraft and a person engaged in aviation service related thereto”. The objective of the Aviation Safety Act is to protect the lives and property of people by prescribing the methods for the safe aviation of aircraft such as airplanes (Article 1). Therefore, unless there is a special clause such as the aforementioned Article 3 (1) of the Act that prescribes exceptions to the law, the law “generally” applies to the safety standards, aviation standards, etc. of aircraft. However, Article 2 of the Act on the Operation, etc. of Military Aircraft which prescribes the matters to be observed for the safe flight of military aircraft, etc. defines military aircraft as aircraft “used by the armed forces”, but does not prescribe matters on aircraft for military use to be exported overseas. In this regard, if an aircraft for military use to be exported overseas does not fall under military aircraft as prescribed by the Act on the Operation, etc. of Military Aircraft, it should be regarded that the Aviation Safety Act applies in respect to the operation, etc. of aircraft. Also, “military aircraft” under Article 3 (1) of the Aviation Safety Act is a summarized term for “aircraft, airship, glider or helicopter used in the military” under Article 2-3 (1) of the Aviation Act (presently the Aviation Safety Act), and there is no reason to regard that the term was used to define the above in a different manner. Therefore, it will be appropriate to restrict “military aircraft” under Article 3 (1) of the Aviation Safety Act to aircraft used in the military, considering the legislative history of the Act. In addition, given that the purpose of the Act on the Operation, etc. of Military Aircraft is to prescribe matters on the flight standards of military aircraft and flight restrictions in restricted airspace and to restrict operation of aircraft where there are urgent circumstances concerning air operations such as wartime, it will not be in line with the purpose of legislation of the Act to apply the Act on the Operation, etc. of Military Aircraft while excluding the Aviation Safety Act to aircraft to be exported that are not considered as “military aircraft” under the Act on the Operation, etc. of Military Aircraft. Based on the above, it can be concluded that where a test flight of an aircraft for military use to be exported is conducted in Korea before it is delivered overseas, the aircraft is not considered a “military aircraft” under Article 3 (1) of the Aviation Safety Act to which the same Act does not apply. "
  • "Such in-flight meals are not considered “foods to be exported”.

    Under Articles 7 (1) and (2) of the Food Sanitation Act, the purpose of which is to contribute to the improvement of public health by preventing sanitary risk caused by foods, the standards and specifications concerning foods or food additives are prescribed. And while paragraph 3 of the same Article prescribes that “Notwithstanding paragraphs (1) and (2), the standards and specifications for foods or food additives to be exported may follow the standards and specifications stipulated by importers”, the Act does not define the meaning of “export”. In this regard, the meaning of “foods to be exported” should be defined based on a consideration of what is prescribed by the Act and the purpose of legislation of the Act, and also the Act’s relation to other laws legislated for a similar purpose and the socially accepted meaning of the term. Under subparagraph 1 of Article 2 of the Foreign Trade Act, which prescribes matters related to foreign trade, “export” is defined as “the exportation and importation of goods, services”. Also, Subparagraph 3 of Article 2 of the Act prescribes the term as “moving goods from the domestic area to a foreign country for sale, exchange, etc”. Therefore, the moving of goods from Korea to overseas due to sales, exchange, etc. means that the goods are moved to fulfill the sales contract, etc. However, where in-flight meals are produced in a bonded factory and supplied to a foreign aircraft that flies from Korea to a foreign country, the in-flight meal supply contract is fulfilled by supplying in-flight meals from a bonded factory to a foreign aircraft in Korea. In this regard, the transaction cannot be considered export, and even if the supplied in-flight meals are moved overseas, it is an act of fact that is performed after the fulfillment of the supply contract. Furthermore, the Enforcement Decree of the Foreign Trade Act prescribes the scope of foreign exchange earnings in Article 26, and “export” (subparagraph 1) and “Domestic sale of goods, etc., which falls under the criteria determined and publicly announced by the Minister of Trade, Industry and Energy” (subparagraph 5) are classified separately. And under Subparagraph 5 of Article 31 of the Regulations on Foreign Trade Management (public notice of the Minister of Trade, Industry and Energy), “refueling or providing supplies for vessels (aircraft) to foreign vessels (aircraft) in return for foreign exchange” is prescribed as domestic sale of goods, etc., not export. Considering the above, the act of supplying in-flight meals produced and processed in a bonded factory to a foreign aircraft flying from Korea to a foreign country cannot be considered “export” under Subparagraph 3 of Article 2 of the Enforcement Decree of the Foreign Trade Act. Moreover, Article 7 (3) of the Food Sanitation Act prescribes that the standards and specifications for foods to be exported may follow the standards and specifications stipulated by importers instead of those of Paragraphs 1 and 2 of the same Article because foods to be exported are not for consumption by Korean nationals and therefore not applying the regulation does not violate the legislative purpose of the Act, which is to contribute to the improvement of public health by preventing sanitary risk caused by foods. And when considering that most passengers on a flight from Korea bound to a foreign country are Korean nationals, it shall be in line with the legislative purpose of the Act to have the in-flight meals supplied to such aircraft conform to the standards and specifications under Article 7 (1) and (2) of the Act. "
  • "In this case, the business constitutes a passenger transport business under subparagraph 3 of Article 2 of the Act, so only persons who have obtained a license or are registered pursuant to Article 4 (1) of the Act can operate the business.

    Under subparagraph 3 of Article 2 of the Act, a passenger transport business is defined as “any business that transports passengers for profit using motor vehicles to respond to demand from others”. In addition, Article 4 (1) of the Act stipulates that “Any person who intends to engage in a passenger transport business shall prepare a business plan and obtain a license from or register with the Mayor/Do Governor”. As such, the Act regulates that only persons who are licensed or registered pursuant to Article 4 (1) of the Act are permitted to operate a passenger transport business. The person who transports passengers after entering into a contract on transporting passengers with his/her own motor vehicle on a route the first or last stop of which is a tourist spot in return for payment from the organization managing the tourist spot is responsible for transporting passengers based on the contract. In other words, the person is transporting passengers to “respond to demand from others”, and the transportation is in return for payment from the organization managing the tourist spot. Therefore, it should be considered that such transportation constitutes passenger transportation “for profit”. In addition, the Act imposes strict regulations on persons intending to operate a passenger transport business in terms of license and registration standards, report of charges or fares, and other matters in order to protect public interest. So if the regulations of the Act can be evaded by entering into a contract in which charges or fares are not directly collected by passengers, it will be contradictory to the purpose of legislating the Act, which is to establish order in the passenger transport business. "
  • "The word “consult” in the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Act does not mean to obtain agreement or consent. Also, the aforementioned “consult” does not have to be in a face-to-face manner.

    First, according to Article 20 (1) of the Act, no person shall sell ownership in a facility of a tourism business by units (applicable only to a resort condominium) or offer membership therein, unless he/she has completed the registration of a specific type of tourist accommodation business or tourist-use facility business, or has obtained approval for the business plan concerned. Also, in accordance with paragraph 5 of the same Article of the Act, the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the same Act, the person who sold or offered a resort condominium for co-ownership or membership (hereafter “manager”) shall consult with the representative organization of co-owners or members on the plan for occupancy of guest rooms, matters related to the collection of expenses incurred in maintaining and managing the relevant facilities, and matters concerning the rights and interests of co-owners of members, in order to protect the rights and interests of co-owners and members.

    However, the word “consult” used in Acts and statutes cannot be considered to have a single meaning, and its meaning should be determined based on a consideration of the purpose of the legal clause, the structure of the overall law, etc. Generally, a contract for sale of a resort condominium by unit is classified into sales contract and facility use contract for the co-owned unit. According to Article 24 (1) 3 of the Enforcement Decree of the Act, in the case of sale in units, the number of purchasers per guest room shall be at least five persons, with the exception of special cases such as when a co-owner is a corporation. Therefore, a co-owner has partial ownership of the guest room concerned, and is prohibited from partially selling the co-ownership or changing the form of the guest room. A co-owner also entrusts the management of the guest room and enters into a facility use contract for using the resort condominium. If he/she fails to abide by the terms of the facility use contract, he/she is restricted from using the co-owned guest room. As such, exclusive rights to use and profit are not granted to a co-owner of a resort condominium.

    A member of a resort condominium is only given priority in using the condominium’s facilities over persons who are not co-owners or members in accordance with the membership contract and facility use contract. In light of this, it is difficult to consider that the representative organization of co-owners and members comprised of members as well as co-owners has the right to make decisions on the operation of resort condominium facilities. On the other hand, the manager has the right to manage and operate facilities and collect management expenses pursuant to the relevant contract, and can also occupy the sold guest rooms and use, profit from and manage the other facilities while owning them. Such facts suggest that it is fair to conclude that the right to decide matters on the operation of a resort condominiums is granted to the manager. Therefore, it is reasonable to say that the manager has the right to decide matters on the operation of a resort condominium’s facilities.

    If so, it can be said that the purpose of Article 26 of the Enforcement Decree of the Act, which prescribes that the manager shall consult with the representative organization of co-owners and members on the formulation of a plan for occupancy of guest rooms (the latter part of subparagraph 2), amendment of any rules on recovery of expenses incurred in maintaining and managing the relevant facilities (subparagraph 3 (b)), and matters concerning the rights and interests of co-owners or members (subparagraph 6 (c)), is to ensure the efficient decision of matters concerning the operation of tourism business while at the same time protect the rights and interests of co-owners and members. In addition, as long as there does not exist a written regulation on recognizing that the results of the consultation are legally binding or the representative organization has decisive rights, it cannot be considered that “consult” means to obtain agreement or consent.

    To restrict the rights of the manager and make it legally effective to grant decisive rights to the representative organization of co-owners and members, a firm legal basis is needed. In this regard, the clause in the Enforcement Decree of the Act prescribing that the manager shall consult with the representative organization of co-owners and members does not mean that an agreement or consent should be obtained, and therefore the rights of the manager cannot be restricted. Moreover, it should be noted that the word “consent” is used in Article 14 (3) of the Act, which prescribes that “when each travel agency intends to change the itinerary, it shall obtain a traveler's prior consent”, implying that “consult” and “consent” are not used interchangeably.

    Second, it should be considered that while the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Act stipulates that the manager shall consult with the representative organization of co-owners and members on certain matters, the procedure and method of consulting are not prescribed.

    As discussed above, the word “consult” used in the aforesaid regulation does not mean to obtain agreement or consent. Generally, to consult means that two or more persons cooperate and discuss, and its narrow meaning does not premise a face-to-face discussion. Consequently, because the law does not restrict that “consult” should be carried out in a face-to-face matter, an exchange of opinion with the consulting counterpart resulting in actual consultation shall be enough, so a method of consulting other than face-to-face consulting shall be permitted. "
  • "The word “consult” in the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Act does not mean to obtain agreement or consent. Also, the aforementioned “consult” does not have to be in a face-to-face manner.

    First, according to Article 20 (1) of the Act, no person shall sell ownership in a facility of a tourism business by units (applicable only to a resort condominium) or offer membership therein, unless he/she has completed the registration of a specific type of tourist accommodation business or tourist-use facility business, or has obtained approval for the business plan concerned. Also, in accordance with paragraph 5 of the same Article of the Act, the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the same Act, the person who sold or offered a resort condominium for co-ownership or membership (hereafter “manager”) shall consult with the representative organization of co-owners or members on the plan for occupancy of guest rooms, matters related to the collection of expenses incurred in maintaining and managing the relevant facilities, and matters concerning the rights and interests of co-owners of members, in order to protect the rights and interests of co-owners and members.

    However, the word “consult” used in Acts and statutes cannot be considered to have a single meaning, and its meaning should be determined based on a consideration of the purpose of the legal clause, the structure of the overall law, etc. Generally, a contract for sale of a resort condominium by unit is classified into sales contract and facility use contract for the co-owned unit. According to Article 24 (1) 3 of the Enforcement Decree of the Act, in the case of sale in units, the number of purchasers per guest room shall be at least five persons, with the exception of special cases such as when a co-owner is a corporation. Therefore, a co-owner has partial ownership of the guest room concerned, and is prohibited from partially selling the co-ownership or changing the form of the guest room. A co-owner also entrusts the management of the guest room and enters into a facility use contract for using the resort condominium. If he/she fails to abide by the terms of the facility use contract, he/she is restricted from using the co-owned guest room. As such, exclusive rights to use and profit are not granted to a co-owner of a resort condominium.

    A member of a resort condominium is only given priority in using the condominium’s facilities over persons who are not co-owners or members in accordance with the membership contract and facility use contract. In light of this, it is difficult to consider that the representative organization of co-owners and members comprised of members as well as co-owners has the right to make decisions on the operation of resort condominium facilities. On the other hand, the manager has the right to manage and operate facilities and collect management expenses pursuant to the relevant contract, and can also occupy the sold guest rooms and use, profit from and manage the other facilities while owning them. Such facts suggest that it is fair to conclude that the right to decide matters on the operation of a resort condominiums is granted to the manager. Therefore, it is reasonable to say that the manager has the right to decide matters on the operation of a resort condominium’s facilities.

    If so, it can be said that the purpose of Article 26 of the Enforcement Decree of the Act, which prescribes that the manager shall consult with the representative organization of co-owners and members on the formulation of a plan for occupancy of guest rooms (the latter part of subparagraph 2), amendment of any rules on recovery of expenses incurred in maintaining and managing the relevant facilities (subparagraph 3 (b)), and matters concerning the rights and interests of co-owners or members (subparagraph 6 (c)), is to ensure the efficient decision of matters concerning the operation of tourism business while at the same time protect the rights and interests of co-owners and members. In addition, as long as there does not exist a written regulation on recognizing that the results of the consultation are legally binding or the representative organization has decisive rights, it cannot be considered that “consult” means to obtain agreement or consent.

    To restrict the rights of the manager and make it legally effective to grant decisive rights to the representative organization of co-owners and members, a firm legal basis is needed. In this regard, the clause in the Enforcement Decree of the Act prescribing that the manager shall consult with the representative organization of co-owners and members does not mean that an agreement or consent should be obtained, and therefore the rights of the manager cannot be restricted. Moreover, it should be noted that the word “consent” is used in Article 14 (3) of the Act, which prescribes that “when each travel agency intends to change the itinerary, it shall obtain a traveler's prior consent”, implying that “consult” and “consent” are not used interchangeably.

    Second, it should be considered that while the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Act stipulates that the manager shall consult with the representative organization of co-owners and members on certain matters, the procedure and method of consulting are not prescribed.

    As discussed above, the word “consult” used in the aforesaid regulation does not mean to obtain agreement or consent. Generally, to consult means that two or more persons cooperate and discuss, and its narrow meaning does not premise a face-to-face discussion. Consequently, because the law does not restrict that “consult” should be carried out in a face-to-face matter, an exchange of opinion with the consulting counterpart resulting in actual consultation shall be enough, so a method of consulting other than face-to-face consulting shall be permitted. "
  • "No. In this case, even if the area’s designation as a redevelopment zone is canceled in accordance with Article 20 (1) 3 of the Act, it cannot be considered that the area is reverted to the status of being designated and publicly notified as a residential environment improvement zone pursuant to the main sentence of Article 22 (1).

    The main sentence of Article 22 (1) of the Act prescribes that if an improvement zone is canceled under Article 20 and 21, the status of a special-use area, fundamental infrastructure, etc. changed by the relevant improvement plan shall be deemed to revert to the status they had before the improvement zone was designated. However, it does not prescribe whether the improvement zone is reverted to the status it had before the cancelation, if the former status was canceled.

    According to the Act, improvement zones are designated by establishing the improvement plan within the extent consistent with the master plan on the improvement of urban areas and residential environments (hereafter "master plan") after gathering consensus from residents, seeking the opinion of the relevant local council and referring the case to the relevant local urban planning committee for deliberation (Articles 8, 15, 16, etc.). As such, the law prescribes that an improvement zone shall be designated after going through processes such as seeking opinions on the need to implement the improvement project, feasibility of the project, etc. Considering this, it is not reasonable to consider that an improvement zone can be designated and publicly notified without going through the improvement zone designation process unless it is prescribed by law. Also, even if cancelation of current designation and designation as a new improvement zone are done at the same time, cancelation of an improvement zone and designation of an improvement zone are separate administrative orders, so the status before designation as a new improvement zone should be regarded as a status in which the former improvement zone is canceled.

    Therefore, the reason that the main sentence of Article 22 (1) of the Act stipulates that specific-use areas, fundamental infrastructure, etc. changed by the relevant improvement plan shall be deemed to revert to the status they had before the improvement zone was designated is to prevent the canceled zone from being left without a designated status and thus become restricted from land use and construction. In this regard, it cannot be deemed that the former improvement zone whose status was already canceled maintains its status of being designated and publicly notified. "
  • "“Activities accompanying cutting or backfiling of not less than 2 m of ground” prescribed by Article 51(2)4 of the Enforcement Decree of the National Land Planning and Utilization Act means activities where 2 m or more of ground is either cut or backfiled.

    Article 56(1)2 of the National Land Planning and Utilization Act (“National Land Planning Act”) prescribes that changes in the form and quality of any land are subject to permission for development activities, while excluding changes in the form and quality of land prescribed by Presidential Decree as cases for cultivation. Also, the main text of Article 51(2)4 of the Enforcement Decree of the Act prescribes that alteration of the form and quality of land prescribed by Presidential Decree means an alteration of the form and quality of land for the admixture of soil or soil preparation for growing crops in developed farmland, the improvement of soil fertility and the improvement of productivity of farmland, and for the installation of water pumping or drainage facilities that does not fall under the case of “where cutting or backfiling of not less than 2 m of ground is accompanied” as an activity that is exempted from permission for development activities. Therefore, changes in the form and quality of land accompanying cutting or backfiling of not less than 2 m of ground is subject to permission for development activities.

    Article 51(1)3 of the Enforcement Decree of the National Land Planning Act defines alteration of the form and quality of land as altering the form and quality of land by cutting, backfiling, levelling, paving, etc. of the ground. And because the comma is grammatically used to list three or more items that fall under a certain category, cutting of the ground and backfiling of the ground should be considered a method of altering the form and quality of land, just like leveling of the ground and paving of the ground. Therefore, 'alteration of the form and quality of land by cutting of the ground' and 'alteration of the form and quality of land by backfiling of the ground' should both be considered 'alteration of the form and quality of land'.

    If so, it is reasonable to conclude that the main text of Article 51(2)4 of the Enforcement Decree of the National Land Planning Act, which prescribes that the alteration of the form and quality of land accompanying cutting or backfiling of not less than 2 m of ground is subject to permission for development activities, means that the relevant authority shall review and decide whether to permit the alteration of the form and quality of land where either the cutting or backfiling of ground measures 2 m or more, even if the alteration is for the admixture of soil or soil preparation for growing crops in developed farmland, the improvement of soil fertility and the improvement of productivity of farmland. "
  • "Yes, in this case, the facility qualifies as a type 2 neighborhood living facility under item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act.

    In item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act, which prescribes the types of buildings that fall under each subparagraph under Article 2 (2) of the same Act, it is stated that if a facility is subject to permission or report of emission facilities under the Clean Air Conservation Act, the Water Environment Conservation Act or the Noise and Vibration Control Act, the facility is considered a type 2 neighborhood living facility if it commissions the treatment of all of its wastewater discharged from the facility.

    Item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act was partially amended as presidential decree no. 30145 on October 22, 2019. With the amendment, the phrase “a facility subject to permission or report of installation of an emission facility or a facility manufacturing precious metals, accessories and related products which commissions the treatment of all of its generated wastewater” was changed. Also, even if a facility is an emission facility subject to permission or report pursuant to the Clean Air Conservation Act or the Noise and Vibration Control Act, Articles 16 (1), 26 (1) of the Clean Air Conservation Act and Article 7 (1) and Article 9 of the Noise and Vibration Control Act each prescribe matters related to the allowable emission standard and the installation of prevention facilities.

    Therefore, it should be considered that item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act is based on the conclusion that if the sum of the floor area of a facility used for manufacture, processing or repair of goods occupies less than 500 m2 in the same building, it can be classified as a type 2 neighborhood living facility based on the method of treatment of wastewater.

    Consequently, a facility that is subject to permission or report of installation of emission facility pursuant to the Clean Air Conservation Act or the Noise and Vibration Control Act and permission or report of wastewater emission facility under the Water Environment Conservation Act, which also commissions the treatment of all of its wastewater, should be considered a type 2 neighborhood living facility under item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act."
  • "The facility owner, etc. should install the main entrance of the building and one or more entrances in each office primarily for public use in a way that enables the entry of persons with disabilities, etc.

    The purpose of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, Senior Citizens, Pregnant Women and Nursing Mothers (hereafter “the Act”) is to increase participation by persons with disabilities, senior citizens, pregnant women, etc., in social activities and to promote their welfare by ensuring their safe and convenient use of facilities and equipment and their easy access to information in daily life (Article 1). To guarantee that persons with disabilities, etc. shall have the right to use facilities and equipment which persons with no disabilities use, on equal terms and to have free access to information (Article 4), the Act prescribes that the basic principle of installation of amenities is that the facility owner, etc. shall install amenities for persons with disabilities, etc. to travel the shortest distance to public buildings and public facilities by the most convenient means possible when they use the buildings and facilities (Article 3), and imposes facility owners, etc. with obligations to install, maintain and manage amenities complying with standards for installation under Article 8 of the Act (Article 9). In addition, in subparagraph 3 (a) 4 of attached Table 2 of the Enforcement Decree of the Act which prescribes the types of amenities to be installed in each facility and the standards for installation, “entrances, etc. where persons with disabilities, etc. are able to enter” is included in the scope of amenities that should be installed in public buildings and public facilities. Also, it is prescribed that the main entrance of a building and at least one entrance to offices, etc. primarily for public use in the building should be installed taking into consideration the effective width, form and attachments that enable the entry of persons with disabilities, etc. The purpose of such installation standards is to ensure the accessibility of persons with disabilities, etc. as much as possible so that such persons can enter offices, etc. primarily for public use in buildings as well as public buildings and public facilities without inconvenience. In particular, "offices, etc." in the above stated regulation is an example of places primarily for public use, such as toilets as well as offices. Considering this, in a place primarily for public use such as offices, etc., it is reasonable to interpret in accordance with the Act that at least one entrance among the entrances to the abovementioned places should be installed in a way that enables the entry of persons with disabilities, etc. In addition, in the former part of subparagraph 3 (a) 4 of attached Table 2 of the Enforcement Decree of the Act, "the main entrance of a building" and "at least one entrance to offices, etc. primarily for public use in the building" are connected with "and", and therefore the main entrance of a building is always included in this case. In this regard, the facility owner, etc. should install the main entrance of the building and one or more entrances in each office primarily for public use in a way that enables the entry of persons with disabilities, etc. "
  • "No, the immediate upper tier contractor who is recognized as liable for a subcontractor’s failure to pay wages to employees and is not a constructor pursuant to subparagraph 7 of Article 2 of the Framework Act on the Construction Industry is not included in the scope of immediate upper tier contractor in this case.

    As delegated by Article 12 (3) of the Wage Claim Guarantee Act, Article 9-2 (2) 2 of the Enforcement Rule of the same Act stipulates the procedure, method, etc. of issuance of documents confirming overdue wages, employer in arrears, etc. Under this Article, the head of the local employment and labor office should check the items under the above Article such as name and location of the place of business, business registration number, etc. and issue a certificate of confirmation in attached Table 7-3 of the said Enforcement Rule. The Article also prescribes that employers in arrears include the immediate upper tier contractor who is held liable for the wages jointly and severally with the subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act. Therefore, information about the employer that should be recorded in the certificate of confirmation of overdue wages and the employer in arrears issued by the head of a local employment and labor office should clearly be about the employer in arrears and the immediate upper tier contractor liable for the wages jointly and severally with a subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act.

    Under Article 44-2 of the Labor Standards Act which stipulates the regulations on the joint and several responsibility for payment of wages in the construction business, where a construction project is being carried out through two or more tiers of contract, if a subcontractor that is not a constructor under subparagraph 7 of Article 2 of the Framework Act on the Construction Industry (hereafter “constructor”) fails to pay wages to employees he/she has employed, the immediate upper tier contractor shall have joint and several responsibility for payment of wages to employees employed by the subcontractor (Paragraph 1). Also, Paragraph 2 of the same Article states that when the immediate upper tier contractor under paragraph 1 is not a constructor, the lowest tier constructor among the upper tier contractors shall be deemed the immediate upper tier contractor. In other words, according to the law, persons jointly and severally responsible for the subcontractor’s failure to pay wages in the construction industry are limited to constructors.

    If so, the scope of “immediate upper tier contractor liable for the wages jointly and severally with the subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act” as prescribed in Article 9-2 (2) 2 of the Enforcement Rule of the Wage Claim Guarantee Act is clearly limited to constructors under subparagraph 7 of Article 2 of the Framework Act on the Construction Industry. In this regard, even if the immediate upper tier contractor is liable for a subcontractor’s failure to pay wages, if the immediate upper tier contractor is not a constructor under subparagraph 7 of Article 2 of the Framework Act on the Construction Industry, he/she is not included in the scope of employers in arrears as prescribed by Article 9-2 (2) 2 of the Enforcement Rule of the Wage Claim Guarantee Act. "