(영문) 수원지방법원 2010.8.12. 선고 2010구합4347 판결

1. The Defendant’s disposition of non-recognition of bankruptcy, etc. rendered against the Plaintiff on February 11, 2010 shall be revoked. 2. The costs of the lawsuit shall be borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The plaintiff is a business place operated by the non-party B, who was employed on June 1, 2006 in C with 13 regular workers (hereinafter referred to as the "business in this case") and retired on March 28, 2009. (B) On November 19, 2009, the plaintiff filed an application for the adjudication of bankruptcy, etc. or for recognition of actual retirement (hereinafter referred to as "wages, etc.") with the defendant on November 19, 2009, by discontinuing B's business due to the business deterioration.

C. On February 11, 2010, the Defendant: (a) on February 11, 2010, the Plaintiff submitted the 2008 wage ledger to the Plaintiff that did not undergo the verification of the business owner; (b) it is difficult to verify the details of delayed payment, such as the actual period of employment, regular workers, and monthly rent; (c) business registration is currently in the state of business closure; (d) it is unknown to the business owner’s location with a gold-processing machine and computer capable of business activities; (c) it is not possible to confirm the existence of the business owner’s continuous business activities; and (d) it is not clear that the business owner’s statement is based on the Plaintiff’s statement about the contents of the business owner’s asset holding which can verify the bankruptcy status; (d) it is difficult to determine that the business owner is unable to pay wages, etc. due to the lack of the business owner’s personal asset status, etc.; and (e) it is insufficient to verify the fact that it satisfies the requirements of the business owner’s bankruptcy, etc.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

(1) The recognition of bankruptcy, etc. is naturally permissible even if the requirement under Article 5(1) of the Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 18913, Jun. 30, 2005) (amended by Presidential Decree No. 18913, Jun. 30, 200) is not a duty of cooperation to require the applicant to submit to the applicant a document stating or prove that the business is discontinued or discontinued and that the payment of wages, etc. is considerably difficult at the time of the application for recognition of bankruptcy, etc. under Article 2(1)2 of the Enforcement Rule of the above Act. However, it is practically impossible to obtain confirmation of the details of overdue wages due to the abolition and escape of the business in this case. Moreover, it is impossible to confirm whether the gold processing machine and computer were disposed of or are kept in another place. Furthermore, the data on the existence of other assets and the status of business partners in this case cannot be grasped by the Plaintiff.

(2) This is because the instant project is discontinued or closed, and the business owner has no ability to pay wages, etc., or it is considerably difficult for the business owner to pay them. This is because, as its main business facility, the auction procedure is in progress with respect to the instant land and its ground buildings, which was the instant business, and the instant project has not been discontinued in form, but its main production or business has been discontinued for more than one year, and its substantial discontinuance has been discontinued.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) According to Article 2(1)2 of the Enforcement Rule of the Act (amended by Ordinance of the Ministry of Labor No. 248 of March 2, 2006), a person who intends to apply for the recognition of the fact of bankruptcy, etc. is obligated to submit to the application form for the recognition of the fact of bankruptcy, etc. along with materials proving that the business operator’s business is discontinued or discontinued, and that the business operator is not able to pay wages, etc., or it is considerably difficult to pay wages, etc., to the extent possible. Therefore, if proof is not possible, the person is not obligated to submit

If it is satisfied, it shall be deemed that it can be recognized as a matter of course, even if the above supporting documents are not separately submitted. Thus, Article 2(1)2 of the Enforcement Rule of the above case imposes a duty of cooperation on a person who intends to apply for recognition of bankruptcy, etc. to submit supporting documents that are necessary for recognition of bankruptcy, etc. Therefore, the defendant bears the burden of proof as to the fact that the person fails to meet the requirements for recognition of bankruptcy, etc.

(2) Judgment on the assertion 2

First of all, there is no dispute between the parties as to whether the instant project was discontinued or closed, but it is difficult to conclude that the instant project was not discontinued or closed solely based on these facts. Rather, according to the respective statements in the evidence Nos. 3 through 5 and 22, the instant project was interrupted after the whereabouts of B was unknown on March 28, 2009, and the labor inspector affiliated with the Defendant visited the instant workplace on August 31 of the same year and confirmed that the instant workplace was unlocked with locks, and that there was no access from the nearby employees of the instant workplace after having been closed at the end of March 2009, and that there was no access to the instant workplace from the nearby employees of the instant workplace after having been closed at the end of March, 209, and that any leakage of machinery and equipment within the instant workplace was brought about. According to such recognition facts, it is reasonable to deem that the instant project was discontinued due to the suspension of production or business activities for more than one month.

(2) Of the allegations, the part that the business in this case is discontinued is reasonable.

Furthermore, according to the statements in Evidence B, Nos. 2 through 4, Nos. 7, 8, 11, 24, and 28 (including the branch numbers) with respect to whether the business owner, who is the owner of the instant case, has the ability to pay wages, etc. or has a substantial difficulty in paying wages, etc., the provisional attachment decision (No. 209Kadan608) was made on April 7, 2009 with respect to the above overdue wages, etc. as the owner of the instant business establishment, which included the amount of 71,689,560 won, such as wages in arrears, etc. 10 and 10 other than the Plaintiff, and it is difficult for the Plaintiff to claim the payment of dividends, etc. from the above part of the auction procedure (No. 2009Kadan608) without the Plaintiff’s ability to claim the payment of dividends, etc. from the Plaintiff’s employees who did not have the right to claim the payment of dividends, etc. from the above part of the auction procedure for the above land and building.

D. Sub-determination

As a result, the instant disposition was rendered without making sufficient fact-finding on the B’s wage payment ability, and there is an error of deviation from and abuse of discretionary power. Therefore, the Defendant should make a second disposition after fact-finding investigation in accordance with the purport of the instant judgment.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable and dismissed.