Seoul Jung-gu OO0 Ghana

Gwangju Mine-gu O0 Dong-dong Do-dong Do-O0 Headquarters

대표자은□■■

Attorney Han-chul et al., Counsel for the defendant

Seoul Yeongdeungpo-gu00000 Ghana

송달장소 광주 광산구OO동_-_(◇★지사)

Representative Kim Jong-soo

대리인 김순☆

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

가. 피고는 2009. 2. 15. 도산하여 폐업한 주식회사 □△△△(이하, '소외 회사'라고 한다)를 대신하여 별표 기재와 같이 소외 회사 소속 근로자인 박♤☆ 등 16명에게 합 계 91,657,160 원 ( = 최종 3개월분 휴업수당 명목으로 합계 45,800,200원 + 최종 3년간 퇴직금 명목으로 합계 45,856,960원)의 체당금을 지급하였다.

B. Meanwhile, at the request of the Plaintiff, the Gwangju District Court was proceeding with the auction procedure of real estate rent for the real estate owned by the non-party company under the control of the Gwangju District Court 2009, 11172. On December 17, 2009, the above court of execution determined the amount to be actually distributed on the date of distribution as KRW 1,508,331,689. On the other hand, the court of execution prepared a distribution schedule to distribute the amount to be actually distributed on the date of distribution as of December 17, 2009 as KRW 91,657,160 to the Defendant, who is the person entitled to subrogation for wages who paid substitute payments to the non-party company employees, in the first order, KRW 4,51,570 to the Gwangju Metropolitan City, which is a tax claimant, and KRW 1,412,162

C. The plaintiff appeared on the date of the above distribution, and raised an objection to the whole amount of the above dividends to the defendant, and thereafter filed the lawsuit of this case on December 23, 2009, which was within seven days thereafter. [Grounds for recognition] The plaintiff did not dispute the facts, Gap evidence Nos. 1, 2, and 3 (which include each number of numbers), and the purport of the whole pleadings.

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that the above amount should be distributed to the plaintiff, because the plaintiff does not take precedence over the plaintiff, who is a right to collateral security, out of the amount of dividends paid to the defendant, the total of 45,800,200 won of substitute payment in the name of suspension allowance, and the defendant asserts that the above amount should be distributed to the plaintiff. Accordingly, the defendant asserts that the defendant can receive dividends in preference to the right to collateral security, as in the case of retirement allowances for the last three months and retirement allowances for the last three years under Article 7 of the Wage Claim Guarantee Act.

(b) Related statutes;

In this regard, Article 2 (1) 5 of the Labor Standards Act provides that "wages" refers to wages, retirement allowances, and all other money and valuables, regardless of their titles, which an employer pays to an employee in return for his/her work. Article 46 of the same Act provides that an employer shall pay shutdown allowances to the employee during the period of suspension of business when the employee suspends his/her business due to a cause attributable to the employer. Article 7 of the Wage Claim Guarantee Act provides that the Minister of Labor (or the head of a local labor office delegated or entrusted with the authority of the Minister of Labor pursuant to Article 27 of the same Act or the Korea Labor Welfare Corporation) shall, upon the employee's request, pay the employee's wages for the last three months, retirement allowances, or non-paid allowances for the last three months, and Article 8 (1) of the same Act provides that the employee may subrogate the employee's right to preferential payment, such as unpaid allowances, to the extent of the amount paid, and that the employee's right to preferential payment under Article 28 (1) of the Labor Standards Act exists.

C. Determination

The key issue of the instant case is whether the right to receive dividends in preference to the Plaintiff, a mortgagee, is recognized in the compulsory execution procedure against the business owner’s property, in which the Defendant paid a total of KRW 45,800,200 as a substitute payment on behalf of the business owner (so called “the highest preferential repayment right”).

Article 46 of the Labor Standards Act provides that a business suspension allowance shall be paid in order to guarantee the minimum standard of living of workers in a case where a business is suspended due to a cause attributable to the employer, which shall be deemed that a business suspension allowance shall be paid in the name of a business suspension allowance in the event that an individual worker fails to provide his/her labor against his/her will despite the existence of his/her intent to provide his/her labor in accordance with a labor contract, and the business suspension

Since it belongs to Chapter 3 of the Labor Standards Act, there is a high need to treat the same as the wage, and if a worker's last 3-month wage is recognized as the top priority repayment right pursuant to Article 38 (2) of the same Act and the employer does not recognize the top priority repayment right, it is possible for the employer to abuse the system of business suspension by choosing the method of paying business suspension allowance without paying the wages recognized as the top priority repayment right to the worker. On the other hand, if the worker fails to provide his labor due to a cause attributable to the employer, the worker can receive business suspension allowance and claim the payment of wages to the employer pursuant to Article 538 (1) of the Civil Act. Thus, in this case, the business suspension allowance has the nature of wage, and the amount paid for the last 3-year period should be treated as the same as the wage. Thus, the defendant can exercise the first priority repayment right as to the amount paid for the last 3-month period under the above law.

Therefore, it is reasonable for the executing court to prepare a distribution schedule to distribute the amount paid by the defendant to the defendant in preference to the plaintiff, who is the right to collateral security, in the amount paid by the defendant for the last three months as a closure allowance, and the above assertion by the plaintiff on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per the text.

St. B. L.S.

Dried scrap metal