[1] The meaning of "total property of an employer" under Article 30-2 (2) of the former Labor Standards Act

[2] In a case where a subcontractor was unable to pay wages to workers due to a cause attributable to the immediately preceding contractor and the immediately preceding contractor was jointly and severally liable to workers of the subcontractor pursuant to Article 36-2 (1) of the former Labor Standards Act, whether workers of the subcontractor may claim the right to preferential payment of wages for the property owned by the immediately preceding contractor (negative)

[1] Article 30-2 (2) of the former Labor Standards Act (amended by Act No. 286 of May 10, 1953 and repealed by Act No. 5305 of March 13, 1997) provides that wages, retirement allowances, and accident compensation for the last three-month period of workers shall be paid in preference to claims secured by pledges or mortgages on the whole property of the employer, taxes, public charges, and other claims. This provision limits the effect of general security rights exceptionally at the public demand in order to guarantee the minimum living of workers, and prescribes the right to preferential payment of wage claims. In light of the legislative intent, the term "all property of the employer" refers to the whole property of the employer, who is a party to an employment contract, and is the primary employer liable for wage obligations as a party to an employment contract.

[2] Even if a subcontractor is jointly and severally liable for the payment of wages to workers of a subcontractor under Article 36-2 (1) of the former Labor Standards Act (amended by Act No. 286 of May 10, 1953 and repealed by Act No. 5305 of March 13, 197) as the subcontractor could not be paid wages to workers due to a cause attributable to the subcontractor, the subcontractor shall be deemed to fall under the immediately preceding contractor, unless there are special circumstances to recognize an implied labor contract relationship between the subcontractor and the subcontractor, and the subcontractor does not constitute the immediately preceding contractor, unless the subcontractor and the subcontractor are jointly and severally liable for the payment of wages to workers of the subcontractor under Article 36-2 (1) of the former Labor Standards Act (amended by Act No. 5305 of March 13, 1997).

[1] Article 30-2 (2) (see current Article 37 (2)) of the former Labor Standards Act (amended by Act No. 286 of May 10, 1953 and repealed by Act No. 5305 of March 13, 1997) / [2] Article 30-2 (2) (see current Article 37 (2)) and Article 36-2 (1) (see current Article 43 (1)) of the former Labor Standards Act (amended by Act No. 286 of May 10, 1953 and repealed by Act No. 5305 of March 13, 1997)

[1] [2] Supreme Court Decision 95Da56798 delivered on December 12, 1997 (Gong1998Sang, 251) / [1] Supreme Court Decision 95Da719 delivered on February 9, 1996 (Gong196Sang, 894)

Plaintiff 1 and 12 others (Attorney Park Jong-il, Counsel for the plaintiff-appellant)

Bank of Korea

Cheongju District Court Decision 97Na1748 delivered on September 11, 1997

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. On the first ground for appeal

Examining the relevant evidence in light of the records, the court below did not err by violating the rules of evidence selection as otherwise alleged in the ground of appeal.

2. On the second ground for appeal

Article 30-2 (2) of the former Labor Standards Act (amended by Act No. 286 of May 10, 195, repealed by Act No. 5305 of March 13, 1997) provides that wages, retirement allowances, and accident compensation for the last 3 months of workers shall be paid in preference to claims secured by pledges or mortgages on the whole property of the employer, taxes, public charges, and other claims. In light of the legislative intent, the term "total property of the employer" refers to the whole property of the employer who is a party to an employment contract and is the first employer who bears the obligation of wages as the first contractor (see Supreme Court Decision 95Da719, Feb. 9, 196). Therefore, if a subcontractor is executed by a subcontractor, it shall not be paid wages to workers under the direct contract of the subcontractor due to reasons attributable to the subcontractor, and it shall not be paid in preference to the above subcontractor under Article 36-2 (1) of the Act.

In the same purport, the judgment of the court below that the non-party 1 corporation, who is in the position of the contractor of the non-party 1 corporation for the non-party 1 corporation to which the plaintiffs belong, cannot be deemed as the employer who is the primary employer who is the party to the labor contract and is the party to the labor contract. Thus, the plaintiffs did not have preferential right to payment against the property of the non-party 1 corporation as the right to collateral security.

All of the grounds of appeal cannot be accepted.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)