A. On January 22, 2013, the Plaintiff filed an application for fact-finding with the instant company pursuant to Article 7 of the former Wage Claim Guarantee Act (amended by Act No. 12528, Mar. 24, 2014; hereinafter the same shall apply) and Article 5 of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 25630, Sept. 24, 2014; hereinafter the same shall apply) to find bankruptcy, etc. against the instant company, by asserting that the Plaintiff was an employee retired from the Defendant Company B (hereinafter referred to as the “instant company”) and was not paid a total of KRW 8,639,832 by the instant company.

B. On May 16, 2013, the Defendant rendered non-recognition of bankruptcy, etc. (hereinafter “instant disposition”) on the ground that “the instant company was actually engaged in business and whether it was discontinued or whether it was suspended from business or business activities, and there is no objective data to confirm the employees belonging to the instant company, separately from the employees belonging to the contracting company,” on the grounds that “the instant company was not engaged in business activities.”

[Ground of recognition] Facts without dispute, Gap evidence 1 to 14, Eul evidence 1 to 16 (including all types of numbers), the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. Summary of the plaintiff's assertion

The instant company is not a company that is not the same company as the instant company that closed its business, but is taken over business of the instant company by comprehensively taking over its business from the instant company, including the Plaintiff’s unpaid wages and retirement allowances, etc. Accordingly, even if the instant company satisfies the requirements for recognition of bankruptcy, etc. under Article 5 of the former Enforcement Decree of the Wage Claim Guarantee Act, the instant company’s disposition of the instant company is unlawful on a different premise, even if it satisfies the requirements for recognition of bankruptcy, etc. under the same Article.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

A) Relevant legal principles

According to Article 7 (1) of the former Wage Claim Guarantee Act, the Minister of Employment and Labor shall pay unpaid wages, etc. on behalf of the employer if the retired employee claims the payment of unpaid wages, etc. in cases falling under the grounds prescribed by Presidential Decree, such as bankruptcy of the employer. According to such delegation, Article 5 (1) of the former Enforcement Decree of the Wage Claim Guarantee Act provides that the Minister of Employment and Labor may recognize that the employer has no ability to pay unpaid wages, etc. upon the application of the employee who retired without receiving the wages, etc. from the employer. Of them, subparagraph 2 of the same Article provides that "where the business is discontinued or is discontinued due to any of the following reasons," "where the principal business facilities are seized, provisionally seized or transferred for debt repayment in the event of the discontinuance of the business," "where the authorization, permission, registration, etc. of the business has been revoked or cancelled (b)", "where the main production or business activities have been suspended for at least one month, maintaining the identity and identity of the transferred employee under the Commercial Act."

It means that the transfer of business is required to be recognized, and the explicit or implied contract between the parties to the transfer of business is required (see, e.g., Supreme Court Decision 96Da2644, Jun. 24, 1997).

B) In the instant case:

(1) In light of the above legal principles, D, on March 23, 2011, with the trade name of "B" as the location of "Simsan Si, Gun," reported the closure of business on August 31, 201 due to various problems of delinquency in tax payment, etc. D, under the name of "F in de facto marital relationship" on September 1, 201, established the company in this case under the name of "Simsan City," and did not pay the total amount of 20 days from the 20th of December 20, 2012 to "20 days from the 20th of December 21, 201, 201, 201, 14.20 days from the 20th of December 20, 2012, 2014, 20 days from the 20th of May 21, 2014, 2014.

Furthermore, the existence of the ability to pay wages, etc. should be determined on the basis of the company of this case, which is the business owner, and in light of the fact that D, who actually managed the company of this case, was convicted of violating the Labor Standards Act by failing to pay wages, etc. to the above workers, etc., the company of this case seems to have no ability to pay the total amount of 156,374,573 won, etc. for retired workers including the plaintiff, etc. Therefore, it is reasonable to deem that the company of this case satisfies all the requirements for recognition of bankruptcy, etc.

(2) As to this, the Defendant asserts that since the instant company formally closes its business and C acquires the business of the instant company as it is, it cannot be deemed that the business of the instant company was discontinued or discontinued.

Therefore, according to the above evidence, C is still working in the company of this case, although there is no evidence to acknowledge that the company of this case was transferred all its human organization of the company of this case on January 2, 2013, and C is operating the vessel block manufacturing business in the company of this case, and the plaintiff was working in the company of this case on January 2, 2013 after withdrawal from the company of this case. However, there is no evidence to prove that C entered into an explicit business transfer contract with the company of this case. Furthermore, in light of whether the company of this case entered into a comprehensive transfer contract including unpaid wages and retirement allowances, it can be acknowledged that some of the workers of this case were working in C still working in the company of this case, but there is no evidence to acknowledge that C had been transferred all its human organization of the company of this case, and wages of workers including the plaintiff were continuously incurred at the time of closure, and it is difficult to consider that C was liable to receive retirement allowances of this case as a comprehensive transfer between C and C of this case.

In addition, it is unclear whether a new company has comprehensively taken over the existing company's business closed, demanding a new company to receive unpaid wages and retirement allowances by proving that the new company has comprehensively taken over its business against the new company, is inconsistent with the legislative intent of the Wage Claim Guarantee Act, which aims to contribute to the stabilization of workers' livelihood by preparing measures to guarantee the payment of unpaid wages and retirement allowances for retired workers without receiving such wages. Therefore, the defendant'

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges’ Trade Name

Judges Cho Jin-jin

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.