Hello, this is attorney Choi Jong-ha of Cheongchul Law Firm.

Among employees who file a complaint with the labour office and go on to bring a criminal charge to recover unpaid wages, a surprising number assume that “now that I have filed, the money will follow.” In unpaid wage cases, however, criminal prosecution and a civil claim for wages are two entirely separate tracks, and failing to distinguish them can mean losing time and, ultimately, the wages themselves.

The first thing to know is that the two tracks run on different clocks. The offence of unpaid wages under Article 109 of the Labor Standards Act carries imprisonment of up to three years or a fine of up to KRW 30 million, and the statute of limitations for prosecuting that offence is five years under Article 249(1)5 of the Criminal Procedure Act. By contrast, the civil claim through which an employee actually recovers the money — the wage claim — is extinguished after only three years under Article 49 of the Labor Standards Act. The criminal door stays open for five years; the civil door through which the money actually arrives closes after three.

The trap most often missed in practice is that filing a criminal complaint does not interrupt the limitation period for the civil wage claim. Under the Civil Act the grounds for interrupting prescription are limited to judicial claims, attachment, provisional attachment or provisional disposition, and acknowledgement of the debt; a simple criminal complaint or accusation is not among them. An employee who thinks “I have filed, so the clock is safe” and merely watches the criminal process may find that the three-year limitation period on the civil wage claim has passed in the meantime — and if the employer decides to “just pay the fine,” the unpaid wages may become unrecoverable. That is why, separately from the criminal complaint, an employee facing an approaching deadline must take independent steps to interrupt prescription, such as a payment order, a small claims action or a civil suit.

A second point to watch is the order of settlement and the statement that one does not wish the employer punished. Article 109(2) of the Labor Standards Act makes the offence one that cannot be prosecuted against the victim’s express wishes, so once the employee clearly states that they do not want punishment, the employer is no longer punished. The difficulty is that such a statement is in principle irrevocable, so restarting the criminal process is very difficult even if the employer then fails to pay the wages it promised.

So when responding to unpaid wages through a criminal complaint, keep three things in mind. First, criminal and civil proceedings are separate, and a criminal complaint alone does not produce payment. Second, the criminal limitation period (five years) and the civil one (three years) differ, and the criminal complaint does not interrupt the civil period, so the deadlines must be managed separately. Third, the statement that you do not wish the employer punished should come after the wages have actually been paid, or at least once payment is firmly secured. Submitting a settlement before you are paid can leave you without the leverage of the criminal process, facing the longer road of civil litigation.