Attorney Cho Jae-won, Counsel for the defendant-appellant

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

A. The Plaintiff was retired while serving in C (hereinafter “instant workplace”) operated by B from August 26, 2013 to May 31, 2016, and was not paid wages and retirement allowances during the period of service.

B. On March 6, 2017, the Plaintiff filed an application with the Defendant for recognition of bankruptcy, etc. (hereinafter “instant application”). On April 26, 2017, the Defendant rejected the Plaintiff’s instant application on the ground that the instant business establishment was not closed or closed and is under normal operation (hereinafter “instant disposition”). Thereafter, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission rendered a ruling dismissing the Plaintiff’s claim on April 3, 2018, and the said written ruling was served on the Plaintiff on April 19, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, purport of whole pleadings.

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Determination on the legitimacy of the instant disposition

A. Summary of the plaintiff's assertion

Although the Plaintiff’s instant application satisfies all the requirements under Article 7(1)3 of the Wage Claim Guarantee Act (amended by Act No. 14839, Jul. 26, 2017; hereinafter “former Wage Claim Guarantee Act”) and Article 7(1)5 subparag. 1 of the Enforcement Decree of the same Act, the Defendant committed the instant disposition by misunderstanding the fact that the instant application was under normal operation without being in the process of discontinuance or discontinuance of the business in the instant workplace, and thus, the instant disposition was unlawful.

B. Determination

In light of the following facts and circumstances, the evidence presented by the Plaintiff alone cannot be deemed as having been in a state of suspension of production or business activity at the instant workplace at the time of the instant disposition, or as having been in a state of suspension of production or business activity for more than one month, and there is no other evidence to prove otherwise. Therefore, it is difficult to view that the instant workplace was in the process of discontinuance or discontinuance of business at the time of the instant disposition. Thus, the Plaintiff’s assertion cannot be accepted without need to further review.

① Generally, the burden of proving the legality of an administrative disposition is an administrative agency, but if the head of the local employment and labor office delegated by the Minister of Employment and Labor with the language, form, and system of Article 7(1) of the former Wage Claim Security Act and Article 5(1) of the Enforcement Decree of the same Act recognizes the existence of bankruptcy, etc., the employee of the company can receive unpaid wages, etc. from the Korea Labor Welfare Corporation delegated by the Minister of Employment and Labor, the burden of proving the existence of the requirement for recognition of bankruptcy, etc., in principle,

(2) Whether an administrative disposition is illegal in an administrative litigation shall be determined on the basis of the relevant statutes and facts at the time of the administrative disposition, and it shall not be affected by the amendment or repeal of statutes or changes in the actual state after the administrative disposition (see, e.g., Supreme Court Decision 2001Du10684, Jul. 9, 2002).

③ According to Article 7(1)3 of the former Wage Claim Guarantee Act and Article 5(1)2 of the Enforcement Decree of the same Act, “it shall be in the process of the discontinuance of business due to any of the following causes.” The reason falling under the process of discontinuance of business is listed as “where the main business facilities are seized, provisionally seized, or transferred for debt repayment at the place of business where the production or operation of the business has been suspended (a)” (b) or “where the main production or operation of the business has been suspended for at least one month” (c). Considering the language, form, and purport of Article 7(1) of the former Wage Claim Guarantee Act and Article 5(1)2 of the Enforcement Decree of the same Act, it is reasonable to view it as a restrictive list. ④ If the testimony of the witness who was working at the place of business of this case was suspended on March 7, 201 to March 5, 317, 2017, the production or sale of the E-production facility of this case was suspended at the place of business, but its production or sale before 4.17.

6. The circumstances presented by the Plaintiff on the ground of the assertion that the instant application satisfies the requirements under the Wage Claim Guarantee Act are all circumstances after April 23, 2017, the date of the instant disposition.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hwang Young-ju

Judge Kim Gin-han

A person shall be appointed.