2. The plaintiffs' remaining claims are all dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

A. The Plaintiffs are the workers of Company B (hereinafter “B”), which is substantially operated by Company B (hereinafter “B”), and upon the accumulation of the liabilities of Company B, Company A, C, and Plaintiff D resolved the payment of wages through a substitute payment by making a false report on closure of business, and Company E (hereinafter “E”) has changed to the name of Company E (hereinafter “E”), and accordingly, the Plaintiffs retired from B upon the report on closure of business on April 1, 2015.

B. On April 24, 2015, Plaintiff D filed an application for recognition of bankruptcy, etc. based on Article 7 of the Wage Claim Guarantee Act and Article 5 of the Enforcement Decree of the Wage Claim Guarantee Act (hereinafter “instant application”). On May 26, 2015, the Defendant accepted the instant application and recognized the fact of bankruptcy, etc. that B had no ability to pay unpaid wages, etc. on the same day, and notified the Korea Workers’ Compensation and Welfare Service of the aforementioned contents. Accordingly, the Korea Workers’ Compensation and Welfare Service paid the Plaintiffs a total of KRW 479,987,960 as indicated in attached Table 2 to the Plaintiffs during the period from June 10 to August 20, 2015. Meanwhile, the Changwon District Prosecutors’ Office did not receive the instant substitute payment in collusion with Plaintiff D, D, G, A, and C, and the instant application for recognition of bankruptcy, etc. from the Defendant on April 12, 2017 to the Korea Workers’ Compensation and Welfare Service.

E. Accordingly, on April 21, 2017, the Defendant rendered a disposition to revoke the recognition of bankruptcy, etc. on the ground that “the Plaintiff filed the instant application in a false or fraudulent manner, even though the instant application was continued to operate the instant business by changing only the Plaintiff D’s trade name after the disguised closure of business,” and notified the rest of the Plaintiffs that the recognition of bankruptcy, etc. was revoked (hereinafter referred to as “the first part”).

F. On May 21, 2017, Korea Workers’ Compensation and Welfare Service notified the Plaintiffs of the payment of the substitute payment and the amount additionally collected (hereinafter referred to as “instant disposition”) inasmuch as it received substitute payment against the Plaintiffs on May 21, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 7 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence Nos. 1 to 3, and the purport of the whole pleadings

2. Relevant statutes;

Attached Form 3 shall be as listed in attached Table 3.

3. Whether the part seeking revocation of the second disposition among the lawsuit in this case is legitimate

We examine ex officio the legitimacy of this part of the lawsuit.

An appeal litigation is, in principle, based on a “administrative disposition, etc., which is the subject of a lawsuit” externally, to be the defendant. It is not different from annual paid-in price based on an instruction or notification of a superior administrative agency or another administrative agency. The same applies to a disposition that an administrative agency delegated or entrusted with authority and rendered under its name (see Supreme Court Decision 2012Du22904, Feb. 28, 2013).

In this case, the plaintiffs sought the revocation of the second disposition against the defendant, but the Korea Labor Welfare Corporation made the second disposition against the plaintiffs, so the part of the lawsuit in this case seeking the revocation of the second disposition against the defendant against the defendant is unlawful as it is against the non-qualified person.

However, for the convenience of understanding, it shall be the same as the judgment on the merits of Disposition 1 and Disposition 2 for the convenience of understanding.

4. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

The instant disposition is unlawful due to (i) procedural defect as follows, (ii) non-existence of the grounds for disposition.

1) Claim of procedural defect

The Defendant did not implement the prior notification procedure prescribed by the Administrative Procedures Act at the time of the instant disposition and did not grant an opportunity to present opinions. Therefore, the instant disposition is unlawful in the course of its procedure.

2) The non-existence of the grounds for disposition

A substantial business owner of B is C, and A is merely a branch of B, and in case of E, A is a company that actually manages, and B and E is a separate corporation different from B and E. Even if some similar points are found in the structure, property, business, etc. between B and E, such circumstance alone cannot be deemed the same company. Therefore, B is not a disguised business closure, and the instant disposition is unlawful on a different premise.

B. Determination

1) Determination as to whether the procedure is unlawful

A) Articles 21(4)2 and 21(4)3 and 22(4) of the Administrative Procedures Act provide that in a case where a certain disposition should be taken when any qualification required by an Act or subordinate statute is not met or is extinguished, if it is objectively proved by a court’s trial, etc. that the qualification is not met or extinguished, a prior notice or hearing of opinions may not be given in a case where there is a substantial reason to deem that the hearing of opinions is considerably difficult or clearly unnecessary due to the nature of the relevant disposition. Article 13 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act provides that a prior notice may not be given in a case where the facts constituting the premise of the disposition are objectively proven in accordance with the court’s judgment or the decision of an administrative agency that is subject to quasi-

B) On April 12, 2017, the Defendant received notice of the disguised closure of B’s business and the Plaintiffs’ improper receipt of substitute payment from the Changwon District Prosecutors’ Office from the Changwon District Prosecutors’ Office, and accordingly, ordered the Plaintiffs to take the first disposition. As such, the Defendant cannot be deemed to have erred by deeming that the facts constituting the premise of first disposition were objectively proven based on the decision of the Prosecutors’ Office in the Changwon District Prosecutors’ Office, a quasi-judicial institution, and without undergoing prior notice or hearing of opinions. Therefore, even if prior notice and hearing of opinions were not conducted prior to the first disposition, it is difficult to deem that there was procedural error.

In addition, taking into account the fact that the second disposition is a follow-up disposition of the first disposition that there is a claim for the return of substitute payments and the payment of the additional collection amount at the time of the first disposition, and that it can be sufficiently anticipated about the basis thereof, and that the fact that is the premise of the second disposition can be seen as having been objectively proven in the decision of the original district public prosecutor's office, which is a quasi-judicial agency, the second disposition, even if it did not undergo prior notice and hearing of opinions

2) Determination as to the existence of grounds for disposition

In light of the above-mentioned facts, Gap evidence 1 through 6, Eul evidence 3, and the following circumstances revealed by the purport of the entire arguments, the plaintiffs can be found to have received substitute payment from the defendant by false or other unlawful means, and after obtaining the recognition of bankruptcy, etc. against Eul, the plaintiffs can be found to have received substitute payment as shown in the attached Table 2 from the Korea Labor Welfare Corporation. Accordingly, the defendant revoked the recognition of bankruptcy, etc. against Eul, and the Korea Labor Welfare Corporation ordered the plaintiffs to return unjust substitute payment. Accordingly, it is difficult to deem that there was an error in the disposition of this case. Accordingly, the above assertion by the plaintiffs on different premise is rejected.

A) On April 12, 2017, A, C, D, F, and G were indicted for violating the Wage Claim Guarantee Act on the ground that they were unfairly receiving substitute payment from the Korea Workers' Compensation and Welfare Service through the instant application, as shown in the separate facts constituting a crime in the separate sheet No. 4, and thus, they were found guilty of both the following facts: (a) on April 12, 2017, Changwon District Court; (b) on July 27, 2017, the Changwon District Court: (c) on the ground that both were the employers prescribed by the Labor Standards Act; (d) upon closure of business, the Defendant was liable to pay wages; (e) on the ground that they were found to have received substitute payment from the Korea Workers' Compensation and Welfare Service; (e) on the ground that the aforementioned application was closed, as indicated in the separate sheet No. 4, (e) and (e) on the ground that they were found to have received substitute payment from the Korea Workers' Compensation and Welfare Service; (e) on the ground that they were sentenced to KRW 71, 701, G2, and 7,7000.

B) E continued to use three truck trucks owned B without changing their names. Besides, E used physical facilities (offices, containers, computers, etc.) and authorized certificates in the name of B as they were used, and furthermore, H’s subcontracting work performed by B was conducted.

C) E continued to employ 41 of the 67 workers of B as the same working conditions, and 5 of them were the subordinate companies of E.

D) If A discontinues B and establishes E and will be followed by the existing work performed by B, A registered in the name of G, one of its own children, because it is likely that the Plaintiffs would not receive substitute payments due to failure to prove that B was substantially discontinued.

E) As such, E has been transferred by maintaining the identity of the human and material organization from B and has been performing the existing work, and there is no evidence to deem that B has been practically abolished.

C. Sub-decision

Ultimately, it is difficult to view the instant disposition as procedural defect, and there is also a ground for disposition, so it cannot be deemed unlawful. Therefore, the Plaintiffs’ above assertion is rejected.

Conclusion

Therefore, the part of the lawsuit of this case seeking the revocation of the second disposition is unlawful, and it is dismissed as the remaining claims of the plaintiffs are without merit. It is so decided as per Disposition.

Judges Park Jong-soo

Judge Cho Jong-sung

According to each description, it can be known that the head of the Busan Regional Employment and Labor Agency has taken the disposition stated in the purport of the claim.

Therefore, this is corrected as above.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.