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

Cheong-gu Office

Pursuant to the distribution schedule prepared by the same court on October 11, 2018 with respect to the car rental auction case of the US District Court OO branch No. 2018 000, the amount of dividends 11,492,154 won to the defendant OO Co., Ltd. 4,292,846 won, the amount of dividends 22,808 won to the defendant OOO branch, the amount of dividends 7,77,884 won to the defendant's Republic of Korea, the amount of dividends 15,00,000 won, and the amount of dividends to the plaintiff to the plaintiff shall be corrected respectively.

A. Upon the application of the GuOO, the creditor, the automobile auction procedure (hereinafter referred to as the “instant auction procedure”) was in progress as the OO district court's OO branch branch branch of 2018tadoo00 with respect to the vehicle's "OOO (hereinafter referred to as the "OOO of this case"). On October 11, 2018, the above court drafted a distribution schedule that distributes the above vehicle's proceeds of KRW 27,100,000 to the Defendants, OOOO corporation, etc. (hereinafter referred to as the "instant distribution schedule").

○ OOOO Corporation: A dividend order (a person entitled to demand a distribution, a substitute payment), dividend amount of KRW 4,00,000;

○ Seoul OO-gu: Dividends 2nd (grants, corresponding taxes), dividends 1,665,340 won

○ Defendant OO Co., Ltd.: Distribution order, dividend amount of KRW 11,492,154

○ Defendant OO: Distribution Order 4 (Authority of attachment, general tax), dividend amount 22,808 won

○ OOtax secretary (Defendant Republic of Korea): Dividends 5 (Deliverys, General Taxes), dividend amount of KRW 7,777,84

B. On June 1, 2018, at the instant auction procedure, the Plaintiff reported the instant company’s wage and retirement allowance of KRW 5,275,00 as a wage obligee, and demanded the instant claim. However, the OO branch prepared the instant distribution schedule without recognizing the Plaintiff’s distribution to the Plaintiff. On October 11, 2018, the Plaintiff appeared on the date of distribution of the instant auction procedure, and stated an objection against each of the instant dividends against the Defendants among the instant distribution schedule.

C. According to the corporate register of the instant company, the Plaintiff was appointed as an internal director of the instant company on August 29, 2016 and completed the registration thereof on the same day, and on September 12, 2016, the Plaintiff was appointed as the representative director of the instant company and completed the registration thereof on the same day. In addition, the registration of the instant company was completed with the Plaintiff’s representative on the same day. Meanwhile, on September 12, 2016, the registration of the said representative director was completed. On the same day, KimO-O and Kim Jong-sung as of September 12, 2016, and completed each registration on the same day.

[Reasons for Recognition] Facts without dispute, entry of Gap 1 to 4, and 6 evidence, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

From August 2016, the Plaintiff was employed by the UO, which is a major shareholder of the instant company, and worked for the instant company. However, the UO only lent the Plaintiff from the Plaintiff to the name of the Plaintiff and took office as the nominal representative director of the instant company. Therefore, the Plaintiff has a claim for unpaid wages to the instant company as a substantial employee of the instant company. In the instant auction procedure, the Plaintiff was repaid preferentially with the claim amounting to KRW 15 million for the last three months pursuant to Article 38(2) of the Labor Standards Act (=5 million won per month salary x 3 months). As such, the instant dividend schedule ought to be revised to pay the Plaintiff the wage claim of the said last three months in the order of priority.

3. Determination as to the cause of action

A. Relevant legal principles

In a lawsuit of demurrer against distribution, the Plaintiff is liable to assert and prove facts constituting the grounds for objection against distribution (see, e.g., Supreme Court Decision 97Da32178, Nov. 14, 1997). In order for the Plaintiff to win in the lawsuit of demurrer against distribution, the Plaintiff should assert and prove that he/she has the right to receive dividends from the Defendant (see, e.g., Supreme Court Decision 2010Da42259, Jul. 12, 2012).

In addition, since a representative director with the right to manage a corporation is not a shareholder of the corporation, he/she is delegated with the authority to conduct all judicial or extrajudicial acts concerning the business of the corporation, barring special circumstances, he/she shall not be deemed an employee under the Labor Standards Act, since he/she provides certain labor under the direction and supervision of the employer and receives certain wages (see, e.g., Supreme Court Decision 93Nu12770, Sept. 23, 199

B. Determination

In light of the facts acknowledged in paragraph (3) of Article 1-3 and the following circumstances acknowledged by adding the overall purport of pleadings to the testimony of OOO, it is insufficient to recognize that the Plaintiff’s status as representative director of the instant company is merely a formal and clear purpose and that the Plaintiff has provided labor under the direction and supervision of OO as the employee of the instant company, and there is no evidence to acknowledge otherwise.

Therefore, the plaintiff's above assertion that the plaintiff has a wage claim under Article 38 (2) of the Labor Standards Act on the premise that the plaintiff is an employee under the Labor Standards Act employed by the company of this case

1) Directors of a stock company under the Commercial Act shall be appointed through a resolution of appointment at the general meeting of shareholders (Article 382(1) of the Commercial Act), and the representative director shall be selected by a resolution of the board of directors (Article 389(1) of the Commercial Act). Only the directors and the representative director legally appointed in accordance with the above procedure can exercise their powers prescribed in the Commercial Act, such as participating in the decision-making of the company's performance of duties or representing the company. The directors and the representative director of such corporation are delegated by the company to conduct certain business affairs (Article 382(2) of the Commercial Act). However, the Plaintiff was appointed as the director at the general meeting of shareholders of the instant company on August 29, 2016, and was appointed as the representative director on September 12, 2016 through the temporary general meeting of shareholders and the resolution of the board of directors of the instant company. However, the Plaintiff, who was appointed as the representative director following the above legitimate procedure, appears

2) According to the witnessO’s testimony, the UO, a major shareholder of the instant company, intended to leave the operation of the instant company to a professional manager, and it appears that the Plaintiff evaluated the Plaintiff’s experience of working as a major manager of the instant company and exercised the shareholder’s right to appoint the Plaintiff as a representative director of the instant company. In particular, although the UOO’s wife, KimO, and Kim Jong-tae, who was the representative director of the instant company on September 12, 2016, appointed the Plaintiff as an internal director at the temporary general meeting of shareholders of the instant company on September 12, 2016, UOO was appointed as the representative director of the instant company.

3) The witnessO testified in this court that the plaintiff was working as the representative director of the company of this case after the plaintiff became the representative director through the general meeting of shareholders of the company of this case. However, the witnessO testified to the effect that "the plaintiff was unable to normally perform the business of the company of this case and only performed the business related to the lawsuit because of the dispute with the Song Jong-sung, a shareholder of the company

4) Although the instant company paid night work allowances, weekly paid overtime work allowances, overtime work allowances, etc. to ordinary employees employed by the instant company, the instant company did not pay the said night work allowances, etc. to the executives including the Plaintiff, who performed the overall business of the instant company.

5) The Plaintiff asserted that from August 2016 to May 2018, the Plaintiff did not receive approximately KRW 55 million of wages and retirement allowances from the instant company, but did not file a complaint with the competent authority on charges of violating the Labor Standards Act due to the failure to pay the said wages and retirement allowances before the instant lawsuit was filed.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is without merit, and all of them are dismissed. It is so decided as per Disposition.