In a case where Company A, B, and C acquired the secured debt of the right to collateral security established prior to the registration of ownership transfer with respect to the factory buildings, etc., the name of which was changed to that of Company B and C, and completed the registration of change of the right to collateral security, and thereafter, employees, etc. of Company B claimed preferential payment of wage claims, etc. during the auction procedure due to the execution of the right to collateral security, the case holding that, inasmuch as the human and physical facilities of Company B were transferred to the Company while maintaining its identity at the time of the completion of the registration of establishment of collateral security, the wage for the last three months and retirement allowance claim

In a case where: (a) Company A, B, and C acquired the secured debt of the right to collateral established before Company C and completed the registration of ownership transfer with respect to the factory building, etc., the name of which was changed in order to Company B; and (b) Company B, employees of Company B, etc. were claiming preferential payment of wage claims, etc. in the auction procedure following the execution of the right to collateral security; (c) the case holding that the company to which Company B, etc. belongs shall have priority over the aforementioned right to claim payment of wages and retirement allowances for the last three months since the establishment registration was completed due to the transfer of the human and material facilities of Company B as they were transferred to Company B while maintaining identity, regardless of the time of employment, since the establishment registration was completed due to the transfer of the right to collateral security, such as unpaid wages

Article 38(2) of the Labor Standards Act, Article 11(2) of the Guarantee of Workers' Retirement Benefits Act

Plaintiff 1 and 15 others (Attorney Cho Jae-ok, Counsel for the plaintiff-appellant)

Korea Asset Management Corporation (Law Firm, Attorneys Min Tae-sik et al., Counsel for the plaintiff-appellant)

March 8, 2012

1. With respect to the auction proceeds of real estate at Changwon District Court 2010 another 23209, 14,220,510 won among the dividend table prepared on June 23, 201 by the same court, 7,50,000 won, 0 won for the dividend proceeds of plaintiffs 2, 14,220,510 won, 0 won for the dividend proceeds of plaintiffs 3, 17,064,620 won for the dividend proceeds of plaintiffs 4, 30 won for the dividend proceeds of plaintiffs 3, 305 won for the dividend proceeds of 17,532,310 won for plaintiffs 5, 30 won for the dividend proceeds of 3,50 won for the dividend proceeds of 3,50 won for the dividend proceeds of 4,50 won for the plaintiff 6,50 won for the dividend proceeds of 1,530 won for 30 won for the plaintiff 6,510 won for the dividend proceeds of 7, 1, 181,5 won for the plaintiff 7,5 won for 30181,

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The relocation process of the factory of this case

(1) On August 27, 2001, Nonparty 1 completed the registration of ownership transfer on the factory site of 5,610 square meters and its ground-based factory building (hereinafter “instant factory”).

(2) On December 16, 2004, Nonparty 2 acquired the instant factory through the public sale procedure and completed the registration of ownership transfer on February 22, 2005.

(3) On July 3, 2006, 2006, Ciplomatics Co., Ltd. (hereinafter “Ciplomatics”) completed the registration of ownership transfer in its name with respect to the instant factory, and completed the registration of ownership transfer with respect to the relevant factory on the same day to our bank, Inc. (hereinafter “Ciplomatics”) by completing the registration of establishment of a neighboring mortgage, which amounts to the maximum debt amount of 1,200,000,000.

(4) On April 19, 2007, the Ciplomatic Association deleted the registration of creation of the first collateral security right, and completed the registration of creation of the second collateral security right (hereinafter “registration of creation of the second collateral security right”) with the Busan Bank, the maximum debt amount of 1,200,000,000 won, and 360,000,000.

(5) On September 19, 2007, KON Co., Ltd. (hereinafter “KON”) completed the registration of transfer of ownership under its name with respect to the instant factory, and completed the registration of transfer of ownership with respect to the registration of transfer of mortgage on October 17, 207.

(6) On July 16, 2010, the Defendant transferred the registration of establishment of the second neighboring mortgage by means of contract transfer, and completed the registration of establishment of the second neighboring mortgage.

B. Auction, etc. of the factory of this case

(1) On August 30, 2010, the Changwon District Court rendered a voluntary decision to commence auction on the instant factory, which is owned by the KON based on the right to collateral security, upon filing an application for voluntary auction of the instant factory.

(2) On June 23, 2011, the Changwon District Court prepared a distribution schedule (hereinafter “instant distribution schedule”) stating that the amount to be actually distributed to the Defendant, who is the mortgagee, shall be KRW 1,554,233,078, on the date of distribution of the real estate auction case (hereinafter “instant auction”) regarding the instant factory on the date of distribution of the real estate auction case (hereinafter “instant auction”).

(3) As to this, Plaintiff 1 appeared as the designated party on the aforementioned date of distribution, and raised an objection against the part of the Defendant’s dividend amount, and filed a lawsuit of demurrer against distribution on June 29, 201.

C. The plaintiffs' wages

The amount of the plaintiffs' wages for the last three months and the retirement allowances for the last three years shall be as specified in the list (attached Form).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

A. The factory of this case was substantially operated by Nonparty 1 and its ownership was changed to Nonparty 2, Cuk, and KONEX order, but the Plaintiffs continued to work in the factory of this case prior to the establishment of the right to collateral security.

B. The KON succeeded to the legal status of the KON while concluding a contract on the secured obligation of the instant right to collateral security from KON, and the employment relationship with the Plaintiffs was also succeeded.

C. Therefore, since the Plaintiffs’ wage claims against KON take precedence over the secured debt of the instant right to collateral security, the Plaintiffs’ right to receive dividends prior to the Defendant in the instant auction procedure against KON’s property, which is the employer. As such, the amount equivalent to the Plaintiffs’ wage claims, etc. out of the dividend amount against the Defendant of the instant distribution schedule ought to be corrected to be distributed to the Plaintiffs.

3. Determination

A. Article 37(2) of the Labor Standards Act limits the validity of a general security right in the public’s request to guarantee the minimum living of workers and provides preferential rights to payment of wage claims. The purport of the provision is that a worker is entitled to preferential rights to payment of wages, retirement allowances for the last three months and retirement allowances for the last three years, claims related to accident compensation, pledges, taxes, public charges, and other claims, and at the same time to the same property of the employer, regardless of whether or not the establishment of each claim is established or not, the employer has the right to preferential payment of wages, retirement allowances, etc., regardless of whether the claim is established or not. The employer does not recognize preferential rights to payment of wage claims until the security right established before the specific succession. However, if the human organization and physical facilities of the business are transferred as a whole while maintaining their identity and substantial identity is recognized, the employees as well as new employees have preferential rights to payment, such as the security right established before the employer acquires the property (see Supreme Court Decision 2005Da275379, Jan. 27, 2005).

B. Comprehensively taking account of the above legal principles: ① the non-party 1 could not pay the unpaid tax out of the possession of the factory under the name of the non-party 1 and the non-party 3’s testimony; ② the non-party 1 transferred the factory to the non-party 2 through public sale on December 16, 204; ② the non-party 1 purchased the factory under the name of the non-party 2 on July 3, 2006, again, the non-party 1 purchased the factory under the name of the non-party 0 to the non-party 1 and the non-party 1, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 1, the non-party 2, the non-party 0 and the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the title.

According to the above facts, while the business entity to which the plaintiffs belong is operated as an individual company by Nonparty 1, it is operated in the form of a stock company by lending the name of the business clinic in the form of a corporation, and the KON was established, the human and physical facilities of the existing personal company were changed in the form of a stock company. The personal and physical facilities of the company at the time when the establishment registration of the second neighboring mortgage was completed, such as succeeding to the labor relationship and property relationship of the company operated by KON under the name of KON, were transferred to KON while maintaining its identity.

Although the name of the factory of this case was changed to KON after the establishment of the 2-mortgage, in the case of this case where the human and physical facilities at the time of the establishment of the 2-mortgage, which can be deemed to have been succeeded to KON as they were maintained their identity, the Plaintiffs, who were the employees of KON, did not ask KON, that the time of employment was before and after the date of the transfer of ownership to KONEX, and the right to claim the payment of the wages of the last three months and retirement allowances for the last three-year period, respectively, shall take precedence over the 2-mortgage.

C. The defendant asserts that there is no legal ground to recognize the defendant's priority over the claim secured by the right to collateral security of this case against the plaintiff's retirement allowance. However, according to Article 11 (2) and (3) of the Guarantee of Workers' Retirement Benefits Act for the last three years, the retirement allowance for the last three years must 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 this case, the retirement allowance is calculated by 30 days' average wage for the year of continuous service. The retirement allowance claimed by the plaintiffs is calculated by 30 days' average wage for the year of continuous service. The retirement allowance claimed by the plaintiffs is calculated by 30 days' average

In addition, the defendant argues that the plaintiff 1 is not a worker with the preferential right to wages because it is the KON's registered auditor, and therefore, the above plaintiff 1 is deemed to have been listed as an auditor in the corporate register, but according to the plaintiff 1's statement in Gap evidence No. 1, the plaintiff 1 is the Deputy Director of Production, although the plaintiff 4 was listed as a director on the KON's corporate register as seen above, it is reasonable to view the plaintiff 1 as a nominal auditor and a worker with the preferential right to wages, and therefore, this part of the defendant's assertion is not reasonable.

4. Conclusion

Therefore, the plaintiffs' claims are justified and all of them are accepted. It is so decided as per Disposition.

[Attachment] Details of wages and retirement allowances: omitted

Judges Nong-ro (Presiding Judge)