(영문) 서울행정법원 2014.11.6. 선고 2014구합59351 판결

1. The Defendant’s disposition of return of the application for recognition of bankruptcy, etc. rendered to the Plaintiff on September 13, 2013 is revoked. 2. The litigation cost is assessed against the Defendant.

Purport of claim

The plaintiff stated that "the defendant's refusal to recognize bankruptcy, etc. was revoked on September 13, 2013" as stated in the order of the complaint. However, it is decided that the plaintiff seeks revocation of the rejection disposition as stated in Paragraph (1) of the order in light of the contents of the grounds for the complaint's claim, Gap evidence No. 1 (Notice of Return of Application for Recognition of Bankruptcy, etc.) and Gap evidence No. 2 (Written Adjudication).

Reasons

1. Details of the disposition;

A. On July 29, 2013, the Plaintiff filed an application with the Defendant for recognition of bankruptcy, etc. against the instant company (hereinafter referred to as “instant application documents”) on the ground that the Plaintiff worked in the Rototo-si 327 and 3 stories in Gangnam-gu Seoul, Seoul (Jtototoria building) and retired without receiving wages and retirement allowances (hereinafter referred to as “instant company”).

B. On July 31, 2013, the Defendant requested the Plaintiff to appear at the Seoul Regional Employment and Labor Agency’s labor improvement instruction2 until August 8, 2013 in order to investigate whether the instant company was bankrupt, etc., and requested the Plaintiff to submit materials proving that the instant company was unable to discontinue its business and pay wages, and to submit a retirement certificate. The Plaintiff did not appear at the aforementioned date, but did not submit the relevant materials. On August 9, 2013, the Defendant requested the Plaintiff to appear and submit materials by August 13:30, 2013 on the same ground. The Plaintiff did not appear at the second date, and the Plaintiff did not submit the relevant materials, and on August 28, 2013, the Defendant requested the Plaintiff to supplement the civil petition documents with the following content.

0. In order to investigate the actual bankruptcy of the instant company, the Plaintiff requested the Plaintiff to appear and submit the required documents, but the Plaintiff failed to submit the documents up to now. The date of shipment shall be September 9, 2013.0 if the pertinent documents are not submitted within the given period, it is difficult to verify the facts and it is inevitable to return the civil petition documents.

C. On September 9, 2013, the Plaintiff did not submit the instant company’s financial statements, wage ledgers, and attendance book, and the Defendant requested the Plaintiff to submit the instant application documents at least twice on September 13, 2013, on the ground that “the Plaintiff did not submit the pertinent documents, but did not submit them.” However, the Defendant issued a disposition rejecting the application for recognition of bankruptcy, etc. (hereinafter “instant disposition”) pursuant to Article 13 of the Civil Petitions Treatment Act and Article 15 of the Enforcement Decree of the same Act on the ground that “the pertinent documents were not submitted.”

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

The defendant requested supplementation twice pursuant to Article 13(1) of the Civil Petitions Treatment Act on the ground that there is a defect in the documents related to the recognition of the fact of bankruptcy, etc. on the ground that the application documents of this case did not accompany the documents, and the plaintiff did not submit the documents required for supplementation. In order to deem it as a defect in the civil petition documents stipulated in the above provision, it must be a case where the civil petitioner could be secured. However, since the business owner of the company of this case submitted all the documents that the plaintiff can secure as a worker under the circumstances where the business owner is in prison or is missing, the application documents of this case cannot be deemed as defective.

Therefore, the instant disposition is unlawful on a different premise.

B. Relevant statutes

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

C. Facts of recognition

1) Many retired workers, including the Plaintiff, who worked for the instant company, filed a petition against the Defendant on the ground that they did not receive wages, etc., and the Defendant became aware of the relevant crime committed by the business owner of the instant company and sent it to the prosecution as the prosecution’s opinion.

2) On August 22, 2013, and September 6, 2013, the Plaintiff submitted to the Defendant a written opinion of investigation into the application for recognition of bankruptcy, etc. (Evidence A4, the above written opinion contains the following: (a) the Plaintiff’s resident registration certificate; (b) the Plaintiff’s resident registration certificate copy; (c) the company’s corporate register; (d) the details of delayed payments; (e) the estimated substitute payments; and (e) his/her photograph as of the company’s present business place; and (e) his/her residence photograph (No. 5-1 through 7) of his/her actual father’s residence.

3) Administrative interpretation relating to the instant case (wages68207-783, November 20, 1998) is as follows.

When submitting an application for recognition of the existence of bankruptcy, etc. pursuant to Article 2 of the Enforcement Rule of the Wage Claim Guarantee Act, it shall be required to attach relevant documents, such as a retirement certificate, issued by the employer at the time of the retirement. Meanwhile, the proviso of Article 6(2) of the Regulations on Recognition of the Facts of Bankruptcy, etc. and the Act on the Business of Confirmation provides that the receipt of the application for recognition of the existence of bankruptcy, etc. shall not be refused on the grounds that evidentiary documents and reference materials have not been attached. In this regard, whether the application for recognition of the existence of bankruptcy, etc. may be rejected even if the employee is unable to submit evidentiary documents and reference materials due to the absence of the employer’s whereabouts, etc., even if the employee is unable to return the application for recognition of the existence of bankruptcy, etc. under Articles 2 and 6 of the Enforcement Rule of the Wage Claim Guarantee Act due to the absence of the employer at the time of the visit. In such a case, the labor inspector may collect them as much as possible and make a decision on the basis thereof.

[Reasons for Recognition] Uncontentious Facts, Gap's statements in Gap's evidence Nos. 3, 4, 5, and 7, and the purport of the whole pleadings is determined.

1) According to Articles 9(1) and 13(1) of the Civil Petitions Treatment Act and Article 15(1) of the Enforcement Decree of the same Act, when a civil petition is filed, administrative agencies shall not withhold or refuse the receipt of the civil petition, except as otherwise provided in other Acts and subordinate statutes, and where there is any defect in the civil petition documents, the administrative agencies shall not, without delay, request the civil petitioner to supplement the civil petition documents within a reasonable period necessary for the supplement and shall return the civil petition documents received only when the civil petitioner fails to supplement the civil petition documents. Thus, the defect subject to the supplement provided in the above provision shall not be deemed as supplement if it can be possible, and the contents thereof shall be done formally and procedural requirements and shall be supplemented or corrected even if the substantive requirements are satisfied (see, e.g., Supreme Court Decisions 90Nu862, Jun. 11, 191; 2003Du6573, Oct. 15, 2004).

2) Article 2(1) of the Enforcement Rule of the Wage Claim Guarantee Act provides that a person who intends to apply for recognition of bankruptcy, etc. shall submit an application for recognition of bankruptcy, etc. along with the following documents, namely, a certificate of retirement issued by an employer at the time of the retirement (in cases where the employer refuses to issue a certificate of retirement or where it is impracticable to issue a certificate of retirement because the employer’s whereabouts are unknown, referring to a certificate of retirement issued by the employer under Article 2(2) of the Labor Standards Act, other than the employer, and where there is no employer, referring to a certificate of retirement issued by the same employer), a certificate of retirement issued by the employer under Article 2(2) of the same Act, and a certificate of retirement issued by the relevant employer is discontinued or discontinued, and the fact that the employer has no ability to pay wages, retirement allowances, or temporary retirement allowances or has considerable difficulty in paying them (limited to cases where it is possible to state or prove the fact) to the head of the Regional Employment Agency or its branch office having jurisdiction over the place of business at the time of retirement.

3) In full view of the following circumstances, based on the aforementioned legal principles, the health class and the facts charged to the instant case added to the purport of the entire pleadings, it cannot be deemed that there is any defect subject to supplementation under Article 13(1) of the Civil Petitions Treatment Act with respect to the instant application documents. Therefore, the instant disposition taken on a different premise is unlawful.

A) The financial statements, wage ledgers, work attendance records, etc. of the instant company that the Defendant requested supplementation and submitted to the Defendant do not provide that the Defendant shall submit them when applying for recognition of bankruptcy, etc. or requesting the Defendant to receive a substitute payment. Rather, the said documents fall under the materials to determine whether the business owner satisfies the substantive requirements of the payment of overdue wages, etc. under Article 7(1)3 of the Wage Claim Guarantee Act, and thus do not fall under those subject to supplementation under the relevant provisions of the Civil Petitions Treatment Act.

B) Even though Article 2(1) of the Enforcement Rule of the Wage Claim Guarantee Act requires the submission of a written application to attach a certificate of retirement, wage, etc., it is reasonable to deem that the submission of the above documents is unnecessary if the retirement fact of an employee is confirmed by any other means, rather than stipulated as an essential requirement for the recognition of bankruptcy, etc., but merely provides for the method of confirming the retirement of the employee. It is reasonable to deem that the Plaintiff’s written investigation of the application for the recognition of bankruptcy, etc. submitted around August 22, 2013 reveals that the Plaintiff was dismissed on August 31, 2012. The Defendant already received the petition for the investigation of the application for the recognition of bankruptcy, etc. on the ground that the Plaintiff was not paid wages, etc. from the employees of the instant company including the Plaintiff to the prosecutor’s office. As such, the Defendant appears to have been aware of the Plaintiff’s retirement due to these circumstances, even if the business was discontinued or discontinued, it is difficult to view the Plaintiff’s submission of the above documents under the name or evidence.

C) In light of the purport of relevant Acts and subordinate statutes, even if a worker fails to attach sufficient evidentiary documents, it is reasonable to receive a written application for recognition of bankruptcy, etc. once the defendant receives the written application for recognition of bankruptcy, etc., and then make a judgment based thereon, but where it is impossible to make a judgment, it is reasonable to make a decision on whether to grant recognition of bankruptcy, etc. or not pursuant to Article 4 or 7

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.