근로기준법상 이른바 임금체불죄의 문제점과 개선방안

Abstract

For workers, wages are a major source of income for households and an essential element in solving food, clothing, and shelter for future labor. Therefore, if wages are overdue, it directly threatens the livelihood of workers, so eradicating overdue wages is a very urgent task. Under the Labor Standards Act, if an employer delays wage payment, fails to pay full wages, or fails to pay wages within 14 days from the date of death or retirement of a worker, he or she shall be punished by imprisonment for up to three years or a fine of up to 30 million won. However, unlike the victim's explicit intention, a prosecution cannot be filed (Anti-intentional punishment clause). It is an abuse of the state's right to punish wages, which is only a civil problem, through criminal sanctions. In addition, criticism is raised that there is a risk of making the criminal law only formal and worthless. However, if wages are overdue, the lives of workers and their dependents who have not been paid will be ruined. In addition, since wage bonds are not only property rights but also survival rights and social rights rights, criminal punishment for overdue wages is necessary in that the state's obligation to protect basic rights is strongly required. However, in the case of non-punishment against will, problems of abuse and side effects are pointed out, and problems are raised that the possibility of low punishment for non-payment of wages and lack of risk due to the level of punishment. First, if thorough judicial processing and appropriate sentencing are guaranteed, the anti-disciplinary system can act as a mechanism to encourage employers to liquidate and consequently contribute to protecting workers' basic rights. Therefore, it is necessary to find a way to exclude the application of bad and habitual delinquent business owners or at least limit the time limit of expressing the intention of non-punishment to before prosecution. Second, since the strengthening of sanctions is not directly related to the resolution of wage arrears and the risk of punishment laws depends on the possibility of punishment and the expected level of punishment, it is necessary to strengthen the level of punishment. However, since the crime of arrears of wages is contrary to the principle of proportionality by punishing even non-malicious arrears of wages, economic sanctions need to be strengthened through fines or fines if they are not malicious or habitual arrears of wages.