도산등사실인정신청불인정처분취소
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Details of the disposition;
A. On December 13, 2010, the Plaintiff entered a stock company B (hereinafter “B”) and was in charge of accounting and management affairs. From April 2012, B delayed payment of wages to the Plaintiff, the Plaintiff was treated as closed on October 25, 2012.
B. Meanwhile, in the meantime, C, who worked as the head of the department in B, established D Co., Ltd. (hereinafter “D”) on July 25, 2012, and the Plaintiff entered as D on September 2, 2012 in light of the details of employment insurance by withdrawing B from the office on September 2, 2012, and entered as D on November 1, 2012.
C. On January 17, 2013, under the premise that the business of B was discontinued, the Plaintiff applied for the fact-finding of B, such as bankruptcy, etc. under Articles 4 and 5 of the Enforcement Decree of the Wage Claim Guarantee Act. However, the Defendant rendered a non-recognition of the Plaintiff’s above application (hereinafter “instant disposition”) on the ground that “It was confirmed that most workers were established in the same place and succeeded to employment, and that most workers were operating the same business by utilizing the same assets and the same business network, and thus, it was merely closed in the form of B, and it cannot be deemed that the business was in the process of discontinuance and discontinuance.”
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2 and 5, purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The representative director of the Plaintiff’s 1 Plaintiff’s assertion 1-B transferred only part of the business facilities to C and discontinued the business, and C independently establishes a new company D and newly employs the existing employees. D is a separate company with no relationship with B, and even if it is implicitly and implicitly, it did not take over the business comprehensively by concluding a business takeover contract. Thus, the business was discontinued.
As such, the plaintiff proved the "business discontinuation" requirement under the Enforcement Decree of the Wage Claim Guarantee Act, and the defendant, despite having granted the plaintiff findings of bankruptcy, etc. as to B, shall not be deemed otherwise.