[2] In a case where a worker can claim wages pursuant to Article 538(1) of the Civil Act because the worker is unable to provide his/her labor due to the suspension of business due to a cause attributable to the employer, whether the “final three-month suspension allowance” constitutes the “final three-month suspension allowance” under Article 37(2) of the former Labor Standards Act where the right of priority repayment is recognized (affirmative)

[2] When a worker is unable to provide his/her labor due to a cause attributable to the employer, the worker may claim temporary closure allowances to the employer pursuant to Article 45(1) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) and may claim wages pursuant to Article 538(1) of the Civil Act. However, as the worker is unable to provide his/her labor due to a cause attributable to the employer, the worker may claim the payment of wages pursuant to Article 538(1) of the Civil Act. However, if the temporary shutdown allowances recognized to the purport of guaranteeing the minimum living standard of the worker is not recognized as the highest priority due to a sudden cause attributable to the claim for temporary shutdown allowances under the former Labor Standards Act, the temporary shutdown allowances system, which is superior to the wage of the worker, may result in guaranteeing the minimum living standard of the worker. Considering the above, where the worker is unable to provide his/her labor due to temporary closure of work due to a cause attributable to the employer, the “final closure allowances for March 27/307.”

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

A. Status of the parties

(1) The Plaintiffs are employees who entered into an employment contract with Nonparty 1 Company and were on duty.

(2) Nonparty 1 Co., Ltd. produced computer parts and supplied them to Nonparty 2 Co., Ltd. by a company established for the purpose of manufacturing and selling video, sound equipment, and electronic parts.

(b) Removal of manufacturing facilities;

(1) The manufacturing facilities of the non-party 1 corporation were comprised of ① SDRra that inspects parts supplied by the subcontractor, ② DV 16folded products produced by assembling the inspected parts, ③ D2A manufacturer, ④ D2A manufacturer, and ④ DVD adjustment appraiser that adjusts and evaluates the performance of the products.

(2) The non-party 1 corporation installed the production facilities owned by the non-party 2 corporation on the non-party 16-speed product manufacturer, and produced computer parts to be supplied to the non-party 2 corporation. However, in 2004, the non-party 2 corporation demanded the return of the production facilities to the non-party 1 corporation by promoting the transfer of the production facilities to the non-party 2 corporation.

(3) On January 8, 2004, the non-party 1 corporation retired from the night workers and took out all the production facilities owned by the non-party 2 corporation for two hours from 06:00 am to 08:00 am of the day before workers work at night, and returned them to the non-party 2 corporation, and most of the production facilities of the D2A product manufacturer owned by the non-party 1 corporation were taken out out of the factory to remodel the model.

(4) The production facilities carried out as above are about 80% of the total production facilities. Accordingly, the non-party 1 corporation became unable to manufacture the products.

C. The plaintiffs' main building occupied the main building

(1) Workers, including the plaintiffs, moved the remaining production facilities to prevent the removal of the production facilities of the non-party 1 corporation from taking them out of the facilities on January 8, 2004, which is the date of taking them out of the facilities, at the expense of the main office of the non-party 1 corporation, and occupied the main building of the non-party 1 corporation upon demanding the restoration of the production facilities taken out to the original state.

(2) However, Nonparty 3, the representative director of Nonparty 1 corporation, performed special negotiations with the labor union on January 9, 2004, stating that Nonparty 3 would dismiss the rest of production workers except approximately fifty (50) employees necessary for the operation of D2A product, owned by Nonparty 1 corporation.

(3) Workers, including the plaintiffs, tried to negotiate with the non-party 1 corporation by proposing the unpaid leave of absence and the payment of wages on several occasions. However, the non-party 1 corporation did not reach an agreement on continuing to claim the layoff of the remaining production workers except for 50 workers.

D. The plaintiffs' recommendations for performance of their wages and retirement allowances are made.

(1) The Plaintiffs, as indicated in the separate sheet No. 3. List No. 3., retired from office both between June 21, 2004 and June 21, 2004, and received all wages until January 7, 2004.

(2) On June 16, 2004, the chief of the labor division of the non-party 1 corporation and the representative director of the non-party 5 corporation who acquired the non-party 1 corporation was found to have a cause attributable to the employer, and the non-party 6 agreed to pay the workers, including the plaintiffs, a shutdown allowance equivalent to 100% of average wages from January 8, 2004 to retirement. The representative director of the non-party 1 corporation in a foreign country was aware of the above agreement through the non-party 7, the money of June 20, 2004, and instructed the non-party 3 to confirm the overdue wages by using a corporate sense.

(3) The average wage of the plaintiffs during the past three months retroactively from the date of suspension of business due to removal of the production facility from January 8, 2004 by the non-party 1 corporation is recorded in the average wage column in annexed Form 3.

(4) On January 5, 2007, Plaintiff 266 filed a lawsuit against Nonparty 1 Company as Cheongju District Court 2007Gaso952, and on March 30, 2007, the decision of performance recommendation became final and conclusive on March 30, 2007 that “The non-party 1 Company shall pay to Plaintiff 266 KRW 10,742,432 (=the non-party 1 Company shall be KRW 6,303,832 from January 1, 2004 to June 2004 + ② KRW 217,800, including annual allowances in 203 + retirement pay + KRW 4,220,80) and delay damages therefor.”

(5) On March 19, 207, the Plaintiffs listed in [Attachment 1] through 265, 267 through 306 of the Plaintiff’s list (hereinafter collectively referred to as “Plaintiff 78, etc.”) filed an order with the Cheongju District Court No. 2007 tea1784 on March 19, 207 to issue a payment order claiming the payment of wages (off-duty allowance), annual allowances, and retirement allowances against Nonparty 1 corporation, and received a payment order on March 22, 2007, stating that “The 1 stock company shall pay to Plaintiff 78, etc. the sum of the claim amount stated in Annex 2.” The above payment order was finalized on April 24, 2007.

(6) On February 21, 2007, Plaintiff 78 et al. as the applicant. On February 21, 2007, Plaintiff 49 workers including the Plaintiffs listed in Plaintiff 307 and 308 listed in Plaintiff 1’s list (hereinafter “Plaintiff 307 et al.”) were confirmed as having Nonparty 8 as the applicant on July 3, 2007 by the head of the Cheongju Office of the Daejeon Regional Labor and Labor Office, which verified that business suspension allowances, etc. were in arrears as indicated in Plaintiff 2’s claim amount table.

(e) Auction procedures and dividends;

(1) On May 4, 2007, pursuant to the above executory performance recommendation decision, Plaintiff 266 filed an application for a compulsory auction on the land size of 140-33,170 square meters, Cheongju District Court 2007Tju District Court, 2007Mo8467, Cheongju-gu, Cheongju-dong, 140-33, 13,170 square meters, etc., and the above court rendered a decision to commence compulsory auction on June 19, 207. As the above real estate was sold at the above auction procedure, the above court distributed the amount of 4,349,39,686 won to be actually distributed on August 22, 2008.

(2) In the above auction procedure, the Plaintiffs received a demand for distribution against the sum of the wages for the last three months, the retirement allowances for the last three years, and the remaining wages and retirement allowances, and as above, the Plaintiffs received a demand for distribution as “the wages for the last three months” as stated in the Claim Amount Table No. 2. (1) of the Claim Amount Table No. 3,89,838, 3,818,046 won, respectively (Provided, That in the case of Plaintiffs 307 and others, respectively, the Plaintiffs demanded for distribution of KRW 3,89,

(3) The above court distributed the amount of KRW 1,432,130,648 to the employees of the non-party 1 corporation in the first order only for the retirement allowance for the last three years. In other words, the above court distributed the amount of KRW 1,220,80 to the plaintiff 78 (Appointed Party), KRW 222,152,054 to the non-party 8 (Appointed Party), including the plaintiff 307, etc., and KRW 4,276,890 to the non-party 10 who seized and collected the wage claim of the non-party 9 who is the worker, and did not distribute the amount of KRW 71,259,530 for the last three months which the plaintiffs demanded as wages for the last three months. In addition, the second order distributed the amount of KRW 71,259,530 to the non-party 1 corporation from the foreign exchange bank that acquired the claim from the non-party 8 (Appointed Party) to the defendant.

[Ground of recognition] In the absence of dispute, Gap evidence 1, Eul evidence 2-1 to 8, Eul evidence 3-1, Eul evidence 1, Eul evidence 11, Eul evidence 13-1, Eul evidence 13-2, non-party 11's testimony, non-party 11's inquiry into the Daejeon District Labor Office of Daejeon District Court, the purport of the whole pleadings

2. Determination

A. The plaintiffs' temporary shutdown allowance or wage claim against non-party 1 corporation

(1) Relevant provisions

Article 45(1) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) provides that “Where a business shuts down due to a cause attributable to an employer, an employer shall pay the relevant worker allowances of not less than 70/100 of average wages during the period of shutdown: Provided, That where an amount equivalent to 70/100 of average wages exceeds ordinary wages, ordinary wages may be paid as a shutdown allowance.”

Meanwhile, the main text of Article 538(1) of the Civil Act provides that "if one of the parties to a bilateral contract becomes unable to perform his/her obligation due to any cause attributable to the obligee, the obligor may claim performance of the other party."

(2) Relation to the above two provisions

According to the above provision, in a case where a worker fails to provide labor due to a cause attributable to the employer, he/she may request the employer to pay wages pursuant to the main sentence of Article 538(1) of the Civil Act, and in a case where the worker suspends his/her business due to a cause attributable to the employer, the worker may be paid the shutdown allowance pursuant to Article 45(1) of the former Labor Standards Act. Therefore, in a case where the worker suspends his/her business due to a cause attributable to the employer, the main sentence of

However, the issue is whether the requirements for claiming wages under Article 538(1) of the Civil Act and the requirements for claiming a shutdown allowance are identical pursuant to Article 45(1) of the former Labor Standards Act. However, the main text of Article 538(1) of the Civil Act uses the expression “reasons attributable to creditors” and Article 45(1) of the former Labor Standards Act uses the expression “reasons attributable to the employer.” Thus, it cannot be deemed that there is a difference between the above two provisions. Therefore, the main text of Article 538(1) of the Civil Act applies to cases where the performance of a bilateral contract obligation becomes impossible due to a cause attributable to the obligee, and Article 45(1) of the former Labor Standards Act applies only to cases where a labor contract ceases to exist due to a cause attributable to the employer.

The Supreme Court held that “where a business is closed due to a cause attributable to the employer,” which is a requirement for the occurrence of a shutdown allowance, refers to the case where the employer is unable to receive labor from the worker due to a cause attributable to the employer for all or part of the business (see Supreme Court Decision 86Do611, Oct. 14, 1986). Accordingly, there is a difference between the requirements for a shutdown allowance and the requirements for Article 538(1) of the Civil Act.

On the other hand, the Supreme Court has widely interpreted the "reasons for creditor's responsibility" under Article 538 (1) of the Civil Act as cases where an obligee's act or omission interferes with the realization of the obligor's performance and his act or omission could be avoided by the obligee (see Supreme Court Decision 2001Da79013, Mar. 12, 2004). Furthermore, the Supreme Court has widely interpreted the "reasons for creditor's responsibility" under Article 538 (1) of the Civil Act. Furthermore, even though the company notified of the intention of employment, the company did not become a worker even after the scheduled date of employment for reasons such as aggravation of the economic situation of IMF relief financing, and eventually dismissed by cancelling the employment, the employer should pay wages until the date of dismissal by deeming the employment relationship was established by notifying the worker of the intention of employment (see Supreme Court Decision 200Da25910, Dec. 10, 202).

Of course, there is a difference in the method of calculation, such as the amount of temporary closure allowance or the amount of deduction, in the case of temporary closure allowance due to reasons attributable to the employer. In addition, there is room to interpret that the requirements to pay temporary closure allowance and the requirements to claim the amount of compensation are different by applying Article 538(1) of the Civil Act. However, even if temporary closure allowance is to be paid due to reasons attributable to the employer, it is very rare to

(3) Determination on the instant case

In this case, during the production of computer parts using the production facilities owned by Nonparty 2 Co., Ltd., Nonparty 1 was unable to work for the Plaintiffs upon the request of Nonparty 2 Co., Ltd. on January 8, 2004. Although the Plaintiffs were able to occupy and use the production facilities upon the request of the Plaintiffs for the restoration of the production facilities, it was attributable to the Plaintiffs’ removal of approximately 80% of the total production facilities from the aftermath of workers, including the Plaintiffs, out of the factory. The Plaintiffs had an intention to provide labor by proposing the restoration of production facilities or the unpaid circular leave of absence. Ultimately, there was a cause attributable to the suspension of business.

Therefore, the non-party 1 corporation is obligated to pay the wages or business suspension allowances to the plaintiffs from January 8, 2004 to the retirement date in the list of annexed Form 3. The business suspension allowances for the above period are as stated in the claim amount column (1) of annexed Form 2, which corresponds to the average wage of 100% according to the contract for the payment of business suspension allowances on June 16, 2004. Among them, it is clear that the amount stated in the claim amount column (2) of annexed Form 2, which the plaintiffs seek in this case is more than the amount stated in the claim amount column (2) of attached Form 2, which the plaintiffs are entitled to claim pursuant to Article 538(1) of the Civil Act.

(b) Whether temporary shutdown allowances are paid top priority over the last three months;

(1) Issues

Article 37 (1) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005) provides that "wages, retirement allowances, accident compensations, and other claims arising from employment shall be paid in preference to taxes, public charges, and other claims except for claims secured by pledges or mortgages on the whole property of the employer: Provided, That this shall not apply to taxes and public charges which take precedence over pledges or mortgages, except for claims secured by pledges or mortgages on the whole property of the employer: Provided, That the same shall not apply to taxes and public charges which take precedence over pledges or mortgages; the wages for the last three months; retirement allowances for the last three years; accident compensations; and accident compensations for the whole property of the employer."

Therefore, it is a problem whether a temporary closure allowance to be paid to a worker is a "wages" which is recognized as the top priority repayment right under Article 37 (2) of the former Labor Standards Act or is merely a "other claims due to employment relations" which are recognized as preferential repayment right under Article 37 (1) of the former Labor Standards Act.

We will examine whether temporary closure allowances constitute wages, and whether the final three-month temporary closure allowances are paid first priority.

(2) Whether a shutdown allowance constitutes a wage

(A) Article 18 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) provides that “The term “wages” means all money and valuables, regardless of their titles, such as wages, salary, and any other name, which an employer pays to an employee as remuneration for work.” Article 2(1)5 of the current Labor Standards Act (wholly amended by Act No. 9699 of May 21, 2009) provides that “wages means wages, salary, and any other kind of money and valuables, regardless of their names, which the employer pays to an employee as remuneration for work.” However, the Labor Standards Act provides that “the employer shall be paid as remuneration for work” without using the expression “those who are eligible for work.” However, the Labor Standards Act stipulates that “a contract entered into for the purpose of providing an employee with labor and paying wages to the employer” (wholly amended by Act No. 8372 of Apr. 11, 2007).

Therefore, wages refer to remuneration for the provision of labor under the direction of an employer without asking for their title. Thus, it should be deemed that the so-called livelihood security wage arising from the status as an employee is not the same as the so-called employee’s provision of labor (see, e.g., Supreme Court en banc Decision 94Da26721, Dec. 21, 1995). However, in a case where an employee fails to actually engage in a “real-time work” due to a cause attributable to the employer, the employee may exercise his right to claim wages (see, e.g., Supreme Court Decision 2000Da25910, Dec. 10, 2002). In other words, unlike the case where an employee is unable to exercise his right to command labor for the provision of labor due to the suspension of his/her principal right and duty to provide labor by deviating from his/her main duty to provide labor, the employee is entitled to exercise his/her right to demand wages (see, e.g., Supreme Court en banc Decision 20197Da194.

(B) Article 45 of the former Labor Standards Act provides that a business suspension allowance shall be paid to the purport that a business suspension allowance is to guarantee the minimum standard of living of workers in a case where a business suspension is discontinued due to a cause attributable to an employer (see Supreme Court Decision 90Da18999, Dec. 13, 191). This is to be deemed that a business suspension allowance shall be paid in return for a business suspension allowance where a business suspension allowance is not provided against an individual employee’s intent to provide labor under a labor contract

(C) In addition, the former Labor Standards Act or the current Labor Standards Act provides, unlike other statutory allowances, temporary closure allowances in Chapter III “wages”. Thus, it is highly necessary to treat temporary closure allowances in the same way as wages, unlike other statutory allowances.

(D) If a worker’s final three-month wage is recognized as the top priority repayment right pursuant to Article 37(2) of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005), and a worker’s final three-month shutdown allowance is not recognized as the top priority repayment right, the employer may abuse the system of shutdown allowance by selecting the method of paying shutdown allowance without paying the worker the highest priority repayment right.

(E) As seen above, in a case where a worker was unable to provide his labor due to a cause attributable to the employer, the worker can not only be paid business suspension allowances but also claim the employer to pay the wages pursuant to Article 538(1) of the Civil Act. In such a case, it shall be deemed that the business suspension allowances have the nature of the wage, and the business suspension allowances shall be treated equally with the wage.

(3) Determination on the instant case

As seen above, in this case, the non-party 1 corporation carried out most of its pre-employment production facilities out of the company so that the workers could not actually work. As such, the plaintiffs should be deemed to have a reason to claim the payment of wages against the non-party 1 corporation pursuant to Article 538(1) of the Civil Act.

In this case, the non-party 1 corporation attempted to dismiss a large number of workers on the ground of the relocation of the non-party 2 corporation to a foreign country. Even if there is an urgent managerial necessity under Article 31 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007), the non-party 1 corporation shall make every effort to avoid dismissal, determine persons subject to dismissal in accordance with reasonable and fair standards, and hold them in good faith after consultation with the trade union, etc. However, the non-party 1 corporation carried out most of the production facilities without consultation with the trade union and made it impossible for workers to actually work. In order to take the above procedure, the non-party 1 corporation needed a certain time in order to take the above procedure, and the worker was entitled to receive wages from the non-party 1 corporation at least for the period required in the above procedure. In addition, if the non-party 1 corporation’s final payment of three-month wages out of the wages receivable from the non-party 1 corporation could be recognized as having the right to pay allowances to the non-party 1 corporation.

Therefore, even if the plaintiffs did not make a separate claim for wages to non-party 1 corporation pursuant to Article 538 (1) of the Civil Code, the claim for temporary closure allowance should be recognized as a claim for part of wages.

(4) Whether temporary closure allowances for the last three months are repaid top priority

(A) As seen earlier, the former Labor Standards Act provides that employees’ wages, accident compensations, and other claims arising from labor relations shall be paid in preference to taxes, public charges, and other claims except for claims secured by pledges or mortgages on the whole property of an employer, and provides that wages for the last three months, retirement allowances for the last three years, and accident compensations shall be paid in preference to claims secured by pledges or mortgages.

It is a question whether the last three-month shutdown allowance is the "wages for the last three months" which are paid in preference to claims secured by pledges or mortgages under Article 37 (2) of the former Labor Standards Act.

If a business suspension allowance does not constitute a wage, it shall be deemed that it constitutes a “claim due to other labor relations” under Article 37(1) of the former Labor Standards Act. However, if a business suspension allowance is deemed that it constitutes a wage, the “final three-month business suspension allowance” shall not be treated differently from the “final three-month wage.”

(B) As seen earlier, when a worker is unable to provide labor due to the suspension of business due to a cause attributable to the employer, the worker may claim temporary closure allowances against the employer pursuant to Article 45(1) of the former Labor Standards Act, and may claim wages pursuant to Article 538(1) of the Civil Act.

However, as a worker is unable to provide his/her labor due to a cause attributable to the employer, he/she is entitled to claim payment of wages pursuant to Article 538(1) of the Civil Act. However, if he/she does not recognize his/her preferential right to pay wages differently from wages due to unexpected circumstances in which he/she claimed payment of temporary closure allowances pursuant to the former Labor Standards Act, the temporary closure allowances system, recognized in the purport of guaranteeing the minimum living standard

(C) Considering the above, in cases where wages can be claimed pursuant to Article 538(1) of the Civil Act as workers are unable to provide their labor due to the suspension of business due to a cause attributable to the employer, “the closing allowance for the last three months” shall also be deemed as wages for the last three months and shall be paid in preference to claims secured by a pledge or mortgage pursuant to Article 37(2) of the former Labor Standards Act.

(5) Whether there exists a legitimate demand for distribution

In a case where a creditor required to demand a distribution has failed to make a lawful demand for distribution, even if there exists a right to demand a preferential payment under the substantive law, as it is impossible to receive a distribution, so if the distribution schedule is prepared and confirmed as excluded from the distribution because he did not make a lawful demand for distribution, and the distribution has been executed in accordance with the final distribution schedule, it cannot be deemed that there is no legal ground on the ground that the amount equivalent to the amount which he could have received a distribution in the case where he made a lawful demand for distribution was distributed to subordinate creditors (see Supreme Court Decisions 98Da12379, Oct. 13, 1998; 2000Da32475, Sept. 29, 200).

As seen above, the plaintiffs demanded the distribution of each suspended allowance stated in the claim amount table (1) of Attached 2.3 months in the auction procedure of Cheongju District Court No. 2007Tju District Court No. 8467 as the "wages for the final three months". As such, the plaintiffs should be deemed to have lawfully demanded the distribution.

C. Sub-committee

From January 8, 2004 to the retirement date of the list No. 3, the Plaintiffs’ closing allowances for the last three-month period shall be distributed in preference to the Defendant’s collateral security right claim. However, in the above auction procedure, the amount indicated in the claim amount column (1) of Attached No. 2.1 is distributed to the Defendant, and it can be deemed that the Defendant gains profit without any legal cause and thereby causes damage to the Plaintiffs.

Therefore, the defendant is obligated to pay to the plaintiffs the amount of money stated in the claim amount table (2) of attached Form 2, which the plaintiffs claim as part of the claim, and to pay damages for delay at each rate of 5% per annum as stipulated in the Civil Act from April 22, 2009 to April 21, 2010, which is clear that it is the day after the delivery of a copy of the complaint of this case from April 22, 2009 to April 21, 2010, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion,

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.

[Attachment 1-3] List of Plaintiffs, Claim Amount List, Suspension Allowance Difference: Omitted

Judges Jeon Jong-tae (Presiding Judge)