2014Da8931 (Counterclaim) Wages

A

B Stock Company

[Lawsuit] Judgment

1. Regarding ground of appeal No. 1

A. If an existing company established a new company with substantially the same form and content as that of the existing company in order to evade debts, this constitutes abuse of the company system, and in such a case, creditors of the existing company may demand the new company to pay debts. Whether a new company was established with the intent to evade debts of the existing company should be determined by comprehensively taking into account all the circumstances, including business situation or asset status at the time of closure of the existing company, actual establishment of the existing company, existence of useful assets, existence and degree of assets from the existing company to the new company, existence of assets transferred from the existing company to the new company, and whether reasonable prices have been paid (see, e.g., Supreme Court Decision 2006Da24438, Aug. 21, 2008).

B. Under the following circumstances, U.S. established the Defendant Company (Counterclaim Plaintiff; hereinafter “Defendant Company”) that is substantially identical in its form and content in order to evade the Defendant Company’s debt (hereinafter “T”), and subsequently, accepted the claim of this case. 1) The payment statement form for the Plaintiff (Counterclaim Defendant, Appointed Party) and the designated parties (hereinafter “Plaintiffs”) issued after the Defendant Company was established and the bank occupation code that paid wages and wage payment is entirely the same as T.

2) U was suspected of violating the Labor Standards Act, and stated that he was the actual operator of the Defendant Company, and that he did not pay retirement allowances for the period calculated by adding two company work periods to the Plaintiffs.

3) After investigating the plaintiffs and U, the head of the Busan Regional Employment and Labor Office established the period of work in which the plaintiffs worked in both companies, and prepared a confirmation center on delayed payment money and valuables based thereon.

4) A special clause that U should establish a separate defendant company to carry on the same business as T.

It is difficult to find out the circumstances.

C. However, solely based on the circumstances determined by the lower court, it is difficult to view that the Defendant Company was established to have proved the fact that the form and content of the Defendant Company is substantially identical to that of T and C and the fact that the Defendant Company was established in order to avoid any debt. In particular, it is not entirely proven whether T is useful to the Defendant Company’s assets, and whether T has the assets transferred to the Defendant Company

D. Nevertheless, solely on the foregoing circumstance alone, the lower court, which cited the main counter in which U was deemed to have established the Defendant Company with substantially identical form and content in order to evade T’s debt, erred by misapprehending the legal doctrine on abuse of legal personality, thereby failing to exhaust all necessary deliberations.

2. As to the grounds of appeal Nos. 2 and 3

A. If not only the validity of the payment of retirement allowances but also the validity of the payment of wages is not recognized even though an employer actually paid to an employee, the employee shall return the amount in the name of the retirement allowances received by the employee to the employer as unjust enrichment. However, the above legal principle is not applicable in cases where the employer agreed to divide the retirement allowances in a formal manner to evade the payment of retirement allowances upon deposit with the employee. Therefore, there is an agreement between the employer and the employee to the effect that the amount of retirement allowances includes a monthly pay or daily allowance and the payment of a separate retirement allowance at the time of retirement. In addition, considering the fact that the content of the employment contract including the agreement to divide the retirement allowances should not be disadvantageous to the employee in light of the previous employment contract or the Labor Standards Act, and that the contents of the employment contract including the above nominal retirement allowances should not be disadvantageous to the employee in light of the previous employment contract or the Labor Standards Act, and that the employer and the employee agreed to pay an additional amount under the pretext of the payment of retirement allowances. Examining the legal principle as seen above, the Plaintiffs’ allegation and evidence as to the grounds for appeal were insufficient.

3. Conclusion

Therefore, the part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

A person shall be appointed.