The case holding that the right to preferential payment is recognized by an application for subsequent completion after the date of adjudication on the ground that the statement of credit submitted prior to the date of adjudication is merely stated as a loan, but it is evident that it is a wage claim in light

The case holding that the right to preferential payment is recognized by an application for subsequent completion after the date of successful bid on the ground that the statement of credit submitted prior to the date of successful bid includes simple collateral loan claims, but it is evident that it is a wage claim in light of attached documents

Article 605 of the Civil Procedure Act, Article 30-2 of the Labor Standards Act

Nowon-ho (Law Firm Seoi General Law Office, Attorneys Yoon Young-chul et al., Counsel for defendant-appellant)

Hyundai Motor v.S. Co., Ltd and two others (Attorneys Cho Han-soo et al., Counsel for the plaintiff-appellant)

1. Of the distribution schedule prepared by this Court on January 17, 1996, the amount of 286,363,913 won against the plaintiff shall be changed to 647,338,374 won, and the amount of 162,682,607 won against the defendant Hyundai Motor Co., Ltd. and the amount of 154,364,309 won against the defendant Hyundai Motor Co., Ltd. and the amount of 43,927,545 won shall be deleted, respectively.

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

The same shall apply to the order.

1. Facts of recognition;

The following facts can be acknowledged in full view of the whole purport of the pleadings in the items of Gap evidence Nos. 1, 2, 3, 4-1 through 5, and 5-1 through 46, for which there is no dispute over the establishment:

A. Each of the designated parties in the name column of the plaintiff (appointed party; hereinafter referred to as the "Plaintiff") and the name column of the attached Form 1 are the employees of the non-party light passenger transportation company (interlock passenger transportation company prior to the change; hereinafter referred to as the "non-party company") who work for each of the periods indicated in the attached Form 1, and the non-party company has not received wages, such as monthly wages, bonuses, retirement allowances, etc. as shown in the attached Form 1.

B. On October 22, 1994, the non-party company agreed to pay 773,916,292 won of wages up to the time of the non-party company's employees to the plaintiff, the president of the non-party company's labor union, including the designated parties listed in the annexed Form (1) on October 22, 1994, to pay the above amount to the non-party company's employees until December 30 of the same year. The non-party company formed an agreement with the same content as borrowing from the plaintiff by the non-party company. On December 31 of the same year, the non-party company confirmed on December 31 of the same year that the plaintiff representing the above workers is in arrears with wages of 773,916,292 won. The plaintiff prepared a letter of agreement with the non-party company's employees on behalf of the above workers that the non-party company did not raise an objection even if taking measures such as establishing a right to collateral security against the property of the non-party company on behalf of the above workers.

C. Meanwhile, according to the application for a compulsory auction by a motor vehicle on May 11, 1995, which is the creditor of the non-party Kim Yong-deok Co., Ltd., the decision to commence a compulsory auction by a motor vehicle as to the motor vehicles listed in the non-party Co., Ltd. No. 1 through No. 320, the 12th of the same month was issued by the court of this 95 taeng-26420, and upon the application for a compulsory auction by a motor vehicle on July 5, 1995, the decision to commence a compulsory auction by a motor vehicle on all the motor vehicles listed in the non-party Co., Ltd. as stated in the attached Form No. 3, which was issued by the court of the same 95ta-4231, the decision to commence the compulsory auction by a motor vehicle auction by the non-party Co., Ltd. as to all the motor vehicles as of July 27, 1995.

D. On June 1 of the same year, the plaintiff submitted to the court a claim statement of KRW 773,916,292 against the non-party company as a right to collateral security, and confirmed that the non-party company delayed payment of wages of KRW 773,916,292 to the above workers except for the above agreement (Evidence 5-11 of the above agreement) and attached the above written statement (Evidence 5-12 of the above evidence) dated December 31, 1994, stating that the non-party company agreed to set up the right to collateral security to secure the above overdue wages to the plaintiff who representing the above workers, with the above workers' preferential payment of KRW 773,916,292, the non-party company's claim statement (Evidence 5-1 of the above evidence No. 5-26 of the Labor Standards Act) on behalf of the designated workers, and the head of the office of the office of the company requested the cooperation of the non-party 1 to pay dividends of KRW 97-14 of the above company's claim.

E. During the above auction procedure, Defendant Hyundai Motor Co., Ltd. and Defendant Hyundai Motor Co., Ltd., which are the first secured mortgage on each part of the above vehicles, submitted a claim statement of KRW 396,537,42 and KRW 187,557,692, respectively, which are the sum of the principal and interest on the part of the above vehicles, and KRW 72,007,610, and KRW 5,500,000, total amount of KRW 77,507,610, and KRW 610, respectively.

F. According to the above auction procedure, on November 2, 1995, the above automobiles, which are the objects of auction, were awarded 660,00,000 won in a lump sum to Non-Party Kim Hong on the date of distribution. On January 17, 1996, this Court prepared a distribution schedule of 162,660,174 won after deducting 15,321,80 won of the enforcement cost, which added interest interest and interest on the above auction price, from the date of distribution, from the amount of 662,660,174 won plus interest on the above auction price, and prepared a distribution schedule of 162,682,60,607 won and 154,364,300 won to the above automobiles, which are the objects of auction. The plaintiff's above claims are treated only as loans on the sole collateral security interest to the defendant Hyundai Motor Co., Ltd. and the defendant Samsung Motor Co., Ltd., Ltd., which is the first collateral.

2. Judgment on the plaintiff's claim

According to the above facts, although the above statement of claim submitted by the plaintiff as of June 1, 1995 has the appearance the same as the demand for distribution as a creditor of the right to collateral security loan, it is reasonable to view that the plaintiff and the designated parties made a demand for distribution by indicating the cause and amount of the claim with regard to the wage claim with preferential payment claim prior to November 2, 1995, which is attached to the above statement of claim (Evidence 5-12), the statement of claim statement (Evidence 5-5-34), and the written request for preferential payment (Evidence 5-13-13) delivered by the head of the Suwon Regional Labor Office, etc., in light of each of the above documents attached to the above statement of claim (Evidence 5-12) and the written request for preferential payment (Evidence 5-5-13).

Therefore, the above claims of the plaintiff and the designated parties should be paid in preference to the above claims of the defendants under Article 30-2 (2) of the Labor Standards Act. Furthermore, according to the above evidence, the monthly salary for the last three months out of the above wages that the plaintiff and the designated parties did not receive shall be 313,460,044 won in total as shown in attached Table 1. Meanwhile, under Article 30-2 (2) of the Labor Standards Act, retirement allowances which are paid in preference to mortgage claims, taxes, or public charges after March 29, 1989 are limited to the amount corresponding to the service period after March 29, 1989. 3. The above retirement allowances with preferential right to payment should be paid in preference to the above claims of the defendants under Article 30-2 (2) of the Labor Standards Act. 3. 6. 3. 4. 6. 6. 3 . 6 . 196 . 3 . 4 . 6 . . 3 . . 196 . . . . 3 and 4 . 6 . . . . . 29 . . . . . 3 . . . . . . . . . . . . . . . . . . . . .

3. Judgment on the defendants' assertion

A. Defendant Korean Automobile Sales Co., Ltd. asserts that some of the objects of the auction in this case were purchased by the non-party company in the way of establishing and distributing a right to collateral security. Thus, the non-party company could not acquire without establishing a right to collateral security, and that the Plaintiff and the designated parties could not work without acquiring the said motor vehicle. Thus, in acquiring the pertinent property, the worker's wage claim cannot be paid preferentially to the claim secured by the right to collateral security, which is the premise. However, even though the seller can recover the motor vehicle, which is the object of auction, from the point of view that in the auction procedure for the motor vehicle sold in installments, the motor vehicle seller can recover the motor vehicle from the auction by means of a third party, etc. on the basis of the ownership reserved by him/her, the mere reason as alleged by the above defendant cannot be ruled out in the application of Article 30-2 (2) of the Labor Standards Act to protect the minimum living

B. Defendant Suwon-si argued to the effect that the above claim for wages had already been extinguished since it acquired the above claim for wages by the Plaintiff et al., so it can be acknowledged that the non-party Yongnam Passenger Co., Ltd. agreed to pay wages to the Plaintiff and the designated parties by taking over the obligation to the employees of the non-party company while taking over the entire service route of the non-party company's operation system, and the non-party Yongnam Passenger Co., Ltd. agreed to pay wages to the employees of the non-party company. Although there is no counter-proof, the above assumption of obligation shall be deemed to be an overlapping assumption of obligation in this case where there is no evidence to support the non-party company's obligation to pay wages, etc. to the Plaintiff and the designated parties. Thus, the above defendant's assertion is without merit.

4. Conclusion

Therefore, among the distribution schedule prepared by this court on January 17, 1996, the amount of 286,363,913 won against the plaintiff shall be changed to 647,338,374 won, and the amount of 162,682,607 won against the defendant Hyundai Motor Corporation and the amount of 154,364,309 won, and the amount of 43,927,545 won against the defendant Suwon Motor Corporation and the amount of 154,364,309 won, and the amount of 43,927,545 won against the defendant Suwon Motor Corporation shall be corrected. Thus, the plaintiff's claim for this decision shall be accepted for the reasons for the plaintiff's claim, and the burden of litigation costs shall be subject to the application of Articles 89 and 93 of the Civil Procedure Act.

Judges Goi-An (Presiding Judge)