2. The costs of lawsuit shall be borne by the Plaintiff.

A. B, on June 13, 2003, established D at the Guro-si C (hereinafter “workplace”) and operated the manufacturing business of electronic assembly, electronic integrated circuits, etc., and reported on December 27, 2012.

B. The Plaintiff, who was employed as D’s employee, asserted that D was bankrupt, and filed an application for recognition of bankruptcy, etc. with the Defendant.

C. On January 21, 2014, the Defendant rendered a disposition of non-recognition of bankruptcy, etc. (hereinafter “instant disposition”) pursuant to Article 5(1) of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 25630, Sept. 24, 2014; hereinafter the same) on the ground that “D” was transferred to the Plaintiff and taken over to the Plaintiff, and that “E is under operation, and thus it cannot be deemed a workplace bankruptcy.”

【In the absence of dispute over the ground for recognition, entry of Gap evidence 1 and 7 (including each number, hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① F did not enter into a contract under which D’s business is to be transferred from B, and the sales contract for D’s machinery was prepared, but it was merely received in lieu of payment in order to receive loans from FOB. ② Since 2012, D had been accumulated and at the risk of closing its business, and thereby maintained H’s status as the partner of the Insect Co., Ltd. (hereinafter referred to as “Insect”) under the name of G, the principal business entity upon seizure of financial accounts, while maintaining its status as the partner, the disposition was eventually closed on December 27, 2012. ③ The F was given payment in substitutes for D’s machinery, but was established for transfer to Daegu Bank, and the sale contract was concluded on the said machinery, and thus, it cannot be said that the F would have acquired ownership of D’s new equipment for the operation of the place of business, and it cannot be said that the Defendant would have lost its employment contract from the beginning on the ground that it was invalid for the reason that it would not be deemed that it would have become invalid for the Plaintiff 13 workers to be employed.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) B established and operated D around June 2003, 2003, and as annual sales amount to KRW 1.5 billion, B established an I stock company with the same type of business, type, and location as D (hereinafter “T”) around January 2007, changed its affiliation to all D workers, and operated its business in the name of I.

2) When the I’s account was seized as a result of the disposition of national tax in arrears on April 2012, B requested for the issuance of tax invoices and the payment of the price for supply in D name from May 2012 to the Ins, which is the only business partner, and thereafter, the employee’s affiliation was changed to D again.

3) A around September 2012, in the name of G, which is a ticket sales unit, registered the business of “H” in which both the type of business, issue, and location are the same as D, and received the supply price of goods in the name of H on October 2012 and 11.

4) AF, around December 20, 2012, which had been holding a claim amounting to KRW 240 million against B, proposed that “F shall be in charge of the management of funds,” “B shall be in charge of the management of funds,” and “B shall be in charge of the business and production, and shall be in charge of the liquidation of taxes, and shall be in full payment,” and “B shall accept the proposal and agreed that B shall receive KRW 300,000 per month, and the remainder shall be appropriated for the repayment of the F’s credit.

5) Accordingly, on January 12, 2012, F entered into a sale contract for movable property and corporeal movables (hereinafter referred to as the “sale contract for movable property and corporeal movables”) with I’s business equipment [the purchase price is KRW 60,000,000 as to the container for the processing of electronic components, the Buyer leased money to the seller, and the amount determined to offset and dispose of movable property and corporeal movables by the amount determined by mutual agreement between the buyer and the seller, and the remaining amount shall be offset by the remaining amount by the profits from operation of machinery in the building. The seller may use it, however, the seller may use it, but the profits therefrom shall be managed by the buyer” (hereinafter referred to as the “sale contract”).

6) On December 27, 2012, F entered into a lease agreement with the lessor, who is the lessor, to receive KRW 40 million of the lease deposit for the workplace from B, and the lessor, paid KRW 12 million of the overdue rent of FI, and the lessee would be F, and the deposit KRW 40 million would be replaced by the I’s deposit.

7) B filed a report on the closure of business of D and I on December 27, 2012, which was the date of the above lease contract, and F filed an application for business registration of the business entity "E" on January 2, 2013, which is "E" and the above business registration was completed on January 7, 2012.

8) On January 2, 2013, F employed K as an executive officer of the workplace. Around that time, F shared employees with B with B at the inquiry time at the workplace, and the title of the representative was changed to E, but in fact, it is equal to that of B. In the future, F was introduced by having the honorary president in the future, and the actual president in the future, "F is F," and the “F is a worker," and the “F is maintaining a large number of minutes.” In the future, F is called as “a person who will assist the president in the future,” and certain workers who requested interim settlement of accounts were asked about retirement pay, and F would be treated under B and B, and the employees were jointly and severally operated by F and B, and the employees continued to work for F and B to jointly operate the said workplace.

9) On January 8, 2013, on the day following the completion of the business registration of E, F and B submitted and approved a copy of E’s business registration certificate and passbook copy. F and B submitted a written pledge on January 9, 2013, stating that “I, in the course of changing the name of business, E, representative F, and H (Gu D) to E on December 2012, I will not object to automatic succession to all transactions in progress with the existing H.”

10) Since then, F, while operating a workplace with B, revealed that all kinds of liabilities, such as main processing costs, equipment leasing charges, taxes and public charges in arrears, overdue wages, retirement allowances, etc., other than those initially heard from B, were revealed, and on January 13, 2013, F, which was called to be fast until creditors became diving, concluded a new employment contract on January 14, 2013 between the Plaintiff, etc.’s employees and the period from January 2, 2013 to December 31, 2013. < Amended by Act No. 11614, Jan. 2, 2013>

11) On January 15, 2013, F received KRW 118,00,000 for the supply of goods from the personnel on December 12, 2012, and thereafter, F used all employees’ wages, outsourcing processing costs, equipment rents, electricity charges, and water supply charges for the use related to the business of the said workplace.

12) On January 22, 2013, F paid wages to workers including the Plaintiff, etc. on December 22, 2012, 2013, the letter of resignation and retirement in I, as stated earlier on December 29, 2012, stating that “I will not raise a civil or criminal objection against E, which was newly employed in relation to the wages and retirement allowances, etc. that occurred while working in I, and that “I would have received a prior payment of wages on January 2013” was submitted respectively.

13) Since then, F would no longer be able to work together with B, and F would no longer be able to write out a letter of confirmation, stating that the amount of KRW 150 million out of the total debt of KRW 300 million shall be appropriated as the payment of the crew, the balance of the rent, and the facility cost, the remainder of KRW 150 million shall be repaid five years, and M's retirement pay shall be responsible for B, and that it would no longer go at the workplace after receiving a letter of confirmation.

14) B came to have a full hand at a workplace after that end, and around that time, F prepared a "Second Fair Trade and Mutual Growth Convention" as of January 2, 2013, which became an issue related to the payment of human tower and the price of supplied goods, a trade basic contract, a pledge, a quality guarantee contract, a (subcontract) fair trade and a standard agreement for shared growth.

15) After the fact that B had already provided the above Convenition, Masting, network equipment, etc. to the Daegu Bank on April 27, 2012, the F re-purchaseed the above amount of KRW 7 million from the Daegu Bank on April 22, 2013, and the deteriorated items were partially purchased or leased, while employed the remainder of the employees excluding M, and most of the existing employees including the Plaintiff continued to work in E.

16) On November 13, 2013, F sent to the Daegu Bank a notice of revocation of a sales contract stating that there was grounds for revocation due to fraud or mistake, such as where the right to transfer was established with respect to the above containers, etc. and B did not repay the loan.

17) Meanwhile, B and F were indicted of occupational embezzlement, violation of the Labor Standards Act, and violation of the Guarantee of Workers' Retirement Benefits Act. On July 3, 2014, the Daegu District Court rendered a two-year suspended sentence of imprisonment with labor in June, 2014 and a two-year verdict of innocence with respect to F [ Daegu District Court Decision 2013Hun-Ma952, 1290 (merger)]. The said judgment was finalized on July 11, 2014.

18) On July 11, 2013, M filed a lawsuit seeking wages, etc. against F (Seoul District Court Decision 2013Kadan7741). On July 16, 2014, M dismissed the Plaintiff’s claim on the ground that F cannot be deemed as having taken over the business until January 9, 2013 that M retired from D, and the said judgment became final and conclusive as the withdrawal of appeal by M on September 29, 2014.

【Ground of recognition】 The fact that there has been no dispute, Gap’s 2 through 19, 21, 22, 26, 27 evidence, Eul’s 2 through 5, 8, 9 (including each number), Eul’s testimony and all pleadings

D. Determination

1) The term "transfer of business" means a company organized for a certain business purpose, i.e., a company that maintains its identity and transfers all human and material organizations as a whole, which can transfer only a part of its business, and where such transfer of business is conducted, in principle, a company that takes over the labor relationship of the relevant worker shall comprehensively succeed to the company that takes over the relevant worker (see Supreme Court Decisions 2000Du8455, Mar. 29, 2002; 200Du8455, Aug. 9, 191; 201Da1525, Aug. 9, 200). Whether the transfer of business can be viewed as a transfer of functional property as a source of revenue that is organized and the transferor continues to conduct the same business as that of the transferor (see Supreme Court Decision 2010Da35138, Sept. 30, 201). Such a transfer of business does not necessarily require implied consent between the parties to the transfer of business (see Supreme Court Decision 2017Da19737, Jul. 2019, 20197.

Meanwhile, according to Article 7 of the former Wage Claim Guarantee Act (amended by Act No. 12528, Mar. 24, 2014; hereinafter the same), and Articles 4 subparag. 3 and 5(1) of the former Enforcement Decree of the Wage Claim Guarantee Act, the defendant must determine whether the business owner who is obligated to pay unpaid wages, etc. upon the application of a retired worker without receiving wages, etc. satisfies the requirements of "business closure, etc.," and shall conduct fact-finding such as bankruptcy. Furthermore, upon the application of the worker, the employer must pay unpaid wages, etc. on behalf of the business owner who has received such bankruptcy, etc. However, the Wage Claim Guarantee Act aims to ensure the stability of workers by taking measures to guarantee the payment of unpaid wages, etc. because it is impossible to continue the business due to business fluctuations and industrial structure changes, or it is limited to the case where there are objective grounds for not receiving unpaid wages, etc., and even if the business owner comprehensively succeeds to employment relations with the relevant worker, the business owner is not obligated to report the business closure, etc.

2) The following circumstances revealed by the above recognition: (i) F acquired the entire business facilities from B to obtain the repayment of credit against B; and (ii) on December 27, 2012, F succeeded to a lease agreement on the place of business; (iii) after reporting the closure of business by B; (iv) it decided to register its business with D, etc.; (v) transfer of all existing business facilities between B and B; and (v) transfer of business from B to B’s personal tower on January 15, 2013 to December 11, 2012 to B; and (v) it can not be seen that the existing business facilities were used for the purpose related to B’s business operation; (v) the employees, including Plaintiff, were not able to receive KRW 118 million for supply of goods from B to December 12, 2012 to B; and (v) the existing business facilities were not acquired from B to B13.13; and (v) the employees, including Plaintiff, were not acquired from B to B131.21.3.

On the other hand, unless there is a special agreement against the transfer of business, the labor relationship between the transferor and the worker shall be comprehensively succeeded to the transferee, and if there is a special agreement between the parties to the transfer of business to exclude part of the labor relationship from the object of succession, the succession of the labor relationship may not be conducted accordingly. However, such special agreement is valid only when there is a justifiable reason under Article 23(1) of the Labor Standards Act since it is not actually dismissed or different, and the dismissal of an employee based only on the transfer of business does not constitute a case where there is a justifiable reason (see Supreme Court Decision 200Du8455, Mar. 29, 2002). Thus, even if F entered into a new contract with the existing workers such as the plaintiff, etc., it cannot be viewed that the labor relationship is terminated due to such a

Therefore, the disposition of this case, which recognized the bankruptcy, etc. of B, is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-ran

Judges Kim Gun-chul

A person shall be appointed.