[2] The scope of wage claims preferentially reimbursed under Article 37(2) of the Labor Standards Act in a case where a labor relationship has already been terminated prior to a demand for distribution in a compulsory auction procedure

[2] In a case where a labor relationship has already been terminated before a demand for distribution during the compulsory auction procedure, the scope of wage claims protected by the preferential payment provision for the workers’ wages for the last three months under Article 37(2) of the Labor Standards Act shall be deemed as wages which have already occurred within three months retroactively from the termination of the labor relationship and have not been paid by the employer.

The Defendants shall pay to the Plaintiffs the respective amount of money corresponding to the Defendants’ respective amount of money for each Plaintiff listed in the attached Table 2, from March 14, 2000 to May 17, 2001, 5% per annum from May 17, 2001, and 25% per annum from the next day to the full payment.

2. The plaintiffs' remaining appeals against the defendants are all dismissed.

3. The costs of the lawsuit shall be in the first and second instances:

(a)The portion arising between the plaintiff and the defendant 1., and 2 is for 4 minutes, that 1 is for the plaintiffs, and the remainder is for the defendant 1., and 2.

B. Plaintiffs 1.5.6, 5.6.6, 7.17.1; 18.19; 27.3.27; 30.36; 36.36; 41.45; 47.65.62; 72.74; 78.; 84.; 90.91.; 103.105; 106.3.6.3.6.6.3.25.26.6.3.6.25.26.6.3.26.4.6.6.6.7.7.7.25.26.3.3.4.6.6.7.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The following facts do not conflict between the parties, or are acknowledged in full view of Gap evidence 1-1, 2, Eul evidence 2-7, Eul evidence 8-1, 2-2, Eul evidence 1, Eul evidence 7 through 48, Eul evidence 49-1 through 4, Eul evidence 50, Eul evidence 51-1 through 3, Eul evidence 52-2, Eul evidence 53, Eul evidence 54-1, 2, Eul evidence 55, 56, Eul evidence 57-1, 2-1, and 57-2, and Eul evidence 57-1, and the results of the inquiry into the fact by the court of the court of the court of the first instance as to UN evidence, and there is no counter-proof otherwise.

A. The plaintiff is a retired employee on each corresponding date stated in the list of the plaintiffs in the annexed list No. 4, who entered the non-party Y Co., Ltd. (Seoul District Court Decision 98Ma84, Jun. 23, 1998; hereinafter referred to as "non-party company") and retired on each corresponding date stated in the same list of the withdrawal date. The wages and retirement allowances that the plaintiffs did not receive from the non-party company are the amount corresponding to the amount stated in the list of unpaid claims in the same list.

B. On April 8, 1998, 320 workers of the non-party company, including the plaintiff, filed an application for provisional seizure against each real estate listed in the separate sheet No. 7 attached to the non-party company owned by the non-party company (hereinafter referred to as "each real estate of this case") with the Seoul District Court on the ground that the non-party company was not paid the wages and retirement allowances from the non-party company. On April 11, 1998, the Seoul District Court 98Kadan9601 delivered the provisional seizure order for each of the above real estate on April 14, 1998.

C.On the other hand, the non-party Nos. 123,017,989 claims against the non-party company totaling KRW 123,017,989, and 25 other than the non-party No. 1, who applied for a compulsory auction for each of the instant real estate to the Seoul District Court on the basis of an executory exemplification of the judgment claiming for retirement pay, etc., and the above court issued a decision to commence compulsory auction by the above court on August 24, 1999, and on August 28, 1999, the registration of the entry was completed, and the auction was completed on November 30, 199, and each of the instant real estate was awarded to the non-party No. S. Co., Ltd. on November 30

D. On December 22, 1999, the plaintiff filed a report on the right and a written demand for distribution with the content that the 340 workers, including the plaintiffs, were the designated parties to the above provisional attachment claim, who reported the claim of KRW 3,497,883,780, including the wage and retirement pay of the above provisional attachment claim, to the court of auction.

E. On February 15, 200, when distributing the auction proceeds of KRW 3,468,80,80,471 deducting KRW 7,531,740 from the auction proceeds of KRW 3,461,271,731, the above auction court decided to distribute the dividends of KRW 104,586,496 to the non-party Lee Jong-hun (Appointed Party) who is the creditors with preferential right to payment under Article 37(2) of the Labor Standards Act, to the non-party Lee Young-hoon (Appointed Party) who is the creditors with preferential right to payment under Article 37(2) of the Labor Standards Act, 36,505,690, to the non-party Lee Jong-ho (Appointed Party), to the non-party Lee Jong-ho (Appointed Party), to whom the dividends of KRW 273,398,835,476,160, the non-party Lee Young-chul (Appointed Party), to whom the dividends of KRW 252,50250,3084,2806.

2. Whether unjust enrichment is established

A. The parties' assertion

As the cause of the claim in this case, the plaintiffs' above wages and retirement allowances claims are claims for which preferential payment right is recognized under Article 37 (2) of the Labor Standards Act, and the plaintiffs were provisionally seized each of the real estate in this case prior to the commencement of the compulsory auction procedure. Thus, even if they did not make a separate demand for distribution in the auction procedure, they should receive dividends in preference to the defendants' claims from the auction proceeds of the above real estate. However, the court of auction did not make a separate demand for distribution, but the defendants received dividends in preference to the plaintiffs without any legal grounds, and thereby obtain profits equivalent to the above dividends, and thereby suffered damages equivalent to the same amount. The defendants

As to this, the Defendants asserted that even though they are creditors with preferential payment right, they did not make a demand for distribution by the auction date in the procedure of compulsory auction in this case, they cannot receive a preferential distribution right, and therefore, they did not make a unjust distribution right.

(b) Markets:

On December 22, 1999, after the successful bid date of the procedure for compulsory auction of this case, the plaintiffs filed a report on the rights to the plaintiffs' wages and retirement allowance claims and a request for distribution to the above auction court after November 30, 1999. However, Article 589 (3) of the Civil Procedure Act, which applies mutatis mutandis by Article 658 of the same Act, provides that the amount of dividends of the claims which are not finalized in the case of provisional seizure shall be deposited. Thus, even if the provisional seizure right holder prior to the commencement of the procedure for compulsory auction does not demand a separate distribution, the provisional seizure right holder shall not be excluded from the distribution even if he did not submit a claim statement (see Supreme Court Decision 94Da5718 delivered on July 28, 1995). Meanwhile, in the case of a claim with preferential payment right of the provisional seizure right, the right to preferential payment is deemed to be based on the nature of the claims, and whether the right to demand a distribution has been treated as legitimate before the commencement of the auction procedure.

As to this case, the fact that the plaintiffs provisionally seized each of the above real estate on the grounds that they were not paid the wages and retirement allowances for the last three months before retirement, which are claims with preferential payment right under Article 37(2) of the Labor Standards Act, before the commencement of the compulsory auction procedure for each of the above real estate, is recognized as above. Although the plaintiffs did not make a demand for distribution by the auction date, the nature of the plaintiffs' claims, which are claims with preferential payment right, cannot be changed to a general bond, even if they did not make a demand for distribution by the auction date, so long as the plaintiffs are treated equally as having made a demand for distribution as a provisional seizure right holder, the plaintiffs are naturally admitted to the distribution procedure as creditors with preferential payment right against the defendant Gangnam-gu Seoul Metropolitan Government and the defendant Korea Asset Management Corporation, which are claims with preferential payment right under Article 37(2) of the Labor Standards Act, and in the distribution procedure

Nevertheless, as seen earlier, since the auction court distributes the auction proceeds of each real estate of this case to the Defendants, and did not distribute them to the Plaintiffs at all, the Defendants eventually obtained profits equivalent to the amount to be preferentially distributed to the Plaintiffs without any legal cause, and the Plaintiffs suffered damages equivalent to the same amount. Therefore, the Defendants are obligated to return them to the Plaintiffs.

3. Scope of unjust gains;

A. The plaintiffs' damages amount

First, the scope of the plaintiffs' wage claims protected by the provisions of preferential reimbursement against the wages of 3 months under Article 37.2 of the Labor Standards Act, 2. 9 of the above amount to be paid in preference to the defendants 1. 3. 8. 2, 9 of the above amount to be paid in preference to the above amount to 9. 1. 2, 19, 19, 36. 41, 45, 65, 74. 8. 1. 2, 9 of the above amount to be paid in preference to the above amount to 9. 1. 2, 1. 9 of the wages of 9. 2, 2, 19 of the above amount to be paid in preference to the above amount to 9. 1. 3, 2, 196, 2, 3. 9 of the wages of 9. 2, 196, 105, 133. 164, 223. 27. 5. 24. 2. 2.

B. Determination on the assertion by Defendant Korea Asset Management Corporation

The defendant Korea Asset Management Corporation (hereinafter referred to as the "Defendant Corporation") seized each of the real estate of this case before the commencement of the compulsory auction procedure on the grounds that the non-party company's employees were not paid disaster compensation or wages from the non-party company. Thus, the above non-party should be deemed to be naturally admitted to the distribution procedure of this case. Accordingly, the amount equivalent to the amount that the defendant Corporation should pay preferentially to the above non-party out of the amount distributed in the distribution procedure of this distribution cannot be included in the damages suffered by the plaintiffs due to the error of the above distribution. Thus, it is argued that the plaintiffs' claim for return of unjust enrichment corresponding to this part cannot be complied with.

Considering the whole purport of the argument in the evidence No. 1-2, No. 1-2, No. 26, 27, and 53 of the evidence No. 1-2, and No. 26, No. 27, and No. 53 were collected, the non-party No. 1-2, and the non-party No. 27,00,000 won agreed with the non-party company due to a disaster was provisionally seized each of the real estate of this case on Jan. 19, 1998. The non-party No. 4,729,726 retirement pay, non-party No. 4,520,548, the non-party No. 1-2, the non-party No. 1-2, and the non-party No. 1-2, and the non-party No. 5,937,260 were not entitled to preferential payment in the dividend distribution procedure of this case, regardless of the allegations by the defendant Corporation.

C. The amount of unjust enrichment returned by the Defendants

Furthermore, with respect to the amount of unjust enrichment to be returned by the Defendants, the facts as seen earlier are as follows: (a) the sum of damages suffered by the Plaintiffs, who are the persons having the right to distribute dividends in the instant distribution procedure, due to erroneous dividends by the auction court; (b) the Defendant Corporation, which is the person having the right to distribute dividends in the above distribution procedure, should return to the Plaintiffs the total amount of the above 2,202,964,630 won paid to them as unjust enrichment; (c) the Defendant Gangnam-gu Seoul Metropolitan Government, which is the person having the right to distribute dividends, and the Defendant Republic of Korea, as the person having the right to distribute dividends, shall return to the Plaintiffs the total amount of the above 2,202,964,630 won paid to them; and (d)47,952,969 won, 969 won, 2,202, 202, 964, 630 won, 279, 2984, 29684, 2968

4. Conclusion

Therefore, the defendants are individually stated in the column for unjust enrichment in the annexed sheet No. 6 attached hereto, which are recognized to the plaintiffs, and are obligated to pay damages for delay at each rate of 25% per annum as stipulated in the Act on Special Cases Concerning the Promotion of Legal Proceedings, etc. from March 14, 2000 to May 17, 2001, which is the date when the plaintiff received the payment of the above auction proceeds with respect to each of the Defendants' amount as stated in the annexed sheet No. 2 list No. 3, which is within the scope of the amount claimed by the plaintiffs in the annexed sheet No. 3, which is within the scope of the amount claimed by the plaintiffs.

Therefore, the plaintiffs' claims against the defendants of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed in its entirety without merit. Since the part of the judgment of the court below against the plaintiffs, which has different conclusions, is unfair, it shall be revoked, and the above payment shall be ordered to the defendants, and the remaining appeals by the plaintiffs shall be dismissed in its entirety as it is so decided as per Disposition (attached Form omitted).

Judges Han Han-sung (Presiding Judge)