(영문) 대전지방법원 2015.4.2. 선고 2014구합16 판결

A. On May 19, 2005, the Plaintiff (hereinafter “instant company”) joined Company B (hereinafter “instant company”) and retired on July 31, 2012. The instant company was a company that mainly engages in the feed manufacturing business, etc., and closed its business ex officio on June 30, 2013 on grounds of tax delinquency.

B. On June 13, 2013, the Plaintiff, who was not paid retirement allowances from the instant company, filed an application for recognition of bankruptcy, etc. with the Defendant on the ground that the instant company was bankrupt. On October 21, 2013, the Defendant rendered a disposition of non-recognition of bankruptcy, etc. (hereinafter “instant disposition”).

In the absence of bankruptcy as of August 20, 2012, “B” means a comprehensive transfer and acquisition of all the business and production facilities to C, and even if such comprehensive transfer and acquisition was not made, it shall be deemed that the business and production facilities belong to B, but it shall not be deemed that D actually continues to operate a place of business using the previous production facilities and its main production or business operation is suspended. Therefore, it shall be deemed that the business falling under Article 5 (1) 2 of the Enforcement Decree of the Wage Claim Guarantee Act is discontinued or that the business is discontinued.

【Facts without dispute over the grounds for recognition, Gap evidence 1, 2, Eul evidence 1-2, Eul evidence 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant company was virtually closed by transferring a business entity to C (hereinafter referred to as “C”) by universal transfer of the business entity, and its major physical facilities commenced on April 3, 2013, and most of its employees retired from office until April 2013. Therefore, at the time of the instant disposition, the instant disposition constitutes the process of discontinuance of business or discontinuance of business as stated in the procedure for recognition of bankruptcy, etc., and thus, the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The issue of this case is whether the production or business activity of the company of this case was suspended at the time of the disposition of this case, and according to the following facts, according to the evidence Nos. 2, 3, 4, Eul evidence Nos. 5-1, 2, 4, Eul evidence Nos. 6-1, 6-2, Eul evidence Nos. 7-1, 2, 3, 8-1, 8-2, 11, 12, Eul evidence Nos. 11, 11, and 12, witness D's testimony, witness E's testimony, and the whole purport of oral argument, it is recognized:

1) On August 20, 2012, the instant company entered into a contract with C to transfer the business rights of the instant company to C, and completed the registration of transfer on October 18, 2010 of the instant company’s head office to C (hereinafter “instant land”). At the time of the registration of transfer of ownership, the instant land was subject to provisional attachment registration, etc. in the name of creditors, etc., including the Korea Credit Guarantee Fund. Meanwhile, D did not receive the transfer proceeds under the said transfer contract from C. (2) On September 3, 2012, E registered as the representative director of C was registered as the representative director of the instant company as the representative director of the instant company on September 12, 2012 and registered again on September 12, 2012.

3) The right to collateral security was established on the instant land, etc., but there was a voluntary decision to commence auction on April 3, 2013. A lessee at the above auction procedure was D representative of the farming association G G and H.

4) Even after the decision on commencement of the above auction was rendered, the name of the depositor by August 12, 2013 was deposited as incorporated farming association G to pay wages to workers belonging to the instant company. D is the representative director of incorporated farming association G, and the instant land is the head office of the instant company and the principal office of G of incorporated farming association. There is a room in which D had resided in the place of business located on the instant land.

5) On August 5, 2013, the labor inspector, who belongs to the Defendant, went through an investigation into the instant company’s workplace. At that time, two workers were employed at the said workplace, and at that time D stated that “(State) would not operate if the said labor inspector goes beyond the auction by the National Bank, and would only transfer its name upon request from the E who is pro rata to continue the operation of the labor inspector.” On November 13, 2013, the said labor inspector confirmed that he/she was on an on-site investigation at the same workplace, I, and J was working. The said labor inspector stated that he/she was employed by D and was working on October 30, 2013.”

6) Around November 2013, 2013, D employed K and had it work at the place of business of the instant company. Since November 20, 2013, D knew that it was the name of the instant company, even though it had worked since November 20, 2013.

7) On January 27, 2014, L and M, a worker of the instant company, stated that D is in the process of the Defendant’s investigation into the instant company until the end of 13.12, 2014, that D is not in the business now.

In light of the following circumstances acknowledged by the aforementioned evidence, i.e., the part of the worker employed by the company of this case, around April 2013, appears to have worked as an employee of the company of this case for a considerable period of time even after the plaintiff's application for the recognition of bankruptcy, etc. against the defendant, and the worker employed in the business site of this case until the time of the disposition of this case appears to have been known to both the company of this case and the farming association company of this case, and C did not have any material to conduct business activities in the business site of this case in its name, it is reasonable to view that D continued to operate the company of this case by changing the name of the company of this case as C and G in the form of the company's name as it was difficult for the company of this case to conduct business in the name of this case, while it is difficult to conduct business in the name of the company of this case, and actually, even at the time of the disposition of this case.

Therefore, it is difficult to view that the business was discontinued at the time of the instant disposition, or that the business was discontinued due to the suspension of the production or business activity of the instant company. Thus, the Plaintiff’s assertion is without merit and the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.