A. On June 1, 2011, the Plaintiff entered a corporation B (hereinafter “B”) that is engaged in facility security business, etc. and served as security guards in Gangnam-gu Seoul Metropolitan Government apartment complex C.

B. B dismissed the Plaintiff on April 5, 2012 (hereinafter “instant dismissal”). Accordingly, the Plaintiff filed a lawsuit against B claiming that the instant dismissal is null and void as the Suwon District Court Branch Branch 2012Gahap7608, asserting that the instant dismissal was null and void, and the said court rendered a judgment accepting the Plaintiff’s claim on April 25, 2013, and the said judgment became final and conclusive on May 10, 2013.

C. Meanwhile, B closed its business on August 13, 2012, and was declared bankrupt on November 26, 2012 by Suwon District Court 2012Hahap30.

D. On May 5, 2013, the Plaintiff filed an application with the Defendant for confirmation of the wages, suspension allowances, and unpaid amount out of the retirement allowances for the last three months prior to the closure of the business pursuant to Article 10 of the Enforcement Decree of the Wage Claim Guarantee Act and Article 7 of the Enforcement Rule of the same Act.

E. However, on June 17, 2013, the Defendant notified the Plaintiff of the following reasons (hereinafter “instant disposition”).

The wages under Articles 2 and 7 of the Wage Claim Guarantee Act are wages under the Labor Standards Act. The amount equivalent to the wages and retirement allowances claimed by the plaintiff is not the remuneration for labor actually provided by the worker, but the amount equivalent to the wages is immediately granted the compulsory power of the Labor Standards Act, and cannot be deemed as falling under the wages under the Labor Standards Act that are subject to criminal punishment, etc. due to the subject of the State's public power.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Gap evidence 4-1, 2, Gap evidence 5, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

Since the dismissal of this case is null and void, the plaintiff asserts that the wages entitled to claim B from the time of the dismissal of this case to the time of the closure of B constitute wages under the Wage Claim Guarantee Act. Accordingly, the defendant asserts that even if the dismissal of this case is null and void, the plaintiff does not actually provide labor from the time of the dismissal of this case to the time of the closure of the business, so the plaintiff's wages entitled to claim B do not constitute wages under the Wage Claim Guarantee Act, and even if the above wages constitute wages under the Wage Claim Guarantee Act, the plaintiff continued to work in D (hereinafter referred to as "D") from the time of the dismissal of this case, and thus, the payment of substitute payments to the plaintiff is contrary to the purport of the Wage Claim Guarantee Act for stabilizing the livelihood

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

Article 7(1) of the Wage Claim Guarantee Act provides that the Minister of Employment and Labor shall pay unpaid wages, etc. on behalf of an employer if a retired employee requests the payment of unpaid wages, etc. in cases where an employer goes bankrupt. According to Articles 2 subparag. 3 and 7(2)1 of the Wage Claim Guarantee Act, the above wages, etc. include wages under the Labor Standards Act. Where a dismissal disposition against an employee is null and void, the labor contract relationship still remains effective during that period, and the employee’s failure to provide labor during the period of dismissal is attributable to an employer’s cause attributable to an unfair dismissal, and thus, the employee may seek payment of all wages, which can be paid in return, if he/she has continued to work in accordance with Article 538(1) of the Civil Act. Accordingly, even if the dismissal disposition against an employee becomes null and void, the Plaintiff’s dismissal cannot be viewed as a substitute payment for another employee under Article 7 of the Wage Claim Guarantee Act without any justifiable ground (see, e.g., Supreme Court Decision 2010Du5479, Jul. 222, 2019).

In this regard, the defendant asserts that the plaintiff cannot pay a substitute payment to the plaintiff because the plaintiff received wages while working in D after the dismissal of this case. However, it cannot be allowed to newly add the grounds that are the basis of the disposition of this case and that are not recognized as identical to the basic facts.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Kim Jin-han

Judges Kim Jae-hwan

A person shall be appointed.