Distribution of dividends to wage creditors who have the right to preferential payment under the Labor Standards Act.

If a wage creditor who has the right to preferential payment under the Labor Standards Act provisionally attached real estate for the purpose of auction prior to the commencement of an auction procedure, even if it was not clearly explained that the right to preferential payment is a right to preferential payment until the time of sale, if it is proved that the right to preferential payment is a right to preferential payment prior to the confirmation

The contents of the decision shall be the same as attached.

Article 81 (Distribution Method of National Tax Collection Act)

Article 11 of the Guarantee of Workers' Retirement Benefits Act

1. Of the distribution schedule prepared by the above court on December 12, 2008 with respect to the auction case of real estate rent in Seoul East Eastern District Court 2008Taeng 4678, the dividend amount of 12,255,163 won for the plaintiff (appointed party); 2. 5,564,910 won for the amount of dividends for the selected party's gambling; 3. 5,360,100 won for the amount of dividends for the selected party's prostitution; 4,961,160 won for the amount of dividends for the selected party's reputation; 5,186,140 won for the amount of dividends for the selected party's reputation 4,186,140 won; 6,831,371 won for the appointed party; 700 million won for the amount of dividends to the Republic of Korea; 805,409,498,400 won for the selected party's reputation 2900 billion won for the defendant.

2. The plaintiff (Appointed)'s remaining claims are dismissed.

3. Of the costs of lawsuit, 40% of the costs of lawsuit shall be borne by the Plaintiff (Appointed Party) and the designated parties, and 50% by the Defendant Republic of Korea, and the remainder 10% by the Defendant Company ○○○○○○.

① The amount of dividends against the Plaintiff (Appointed Party; hereinafter “Plaintiff”) is KRW 12,986,04; ② KRW 8,834,693; KRW 11,107,148; KRW 107; KRW 148; KRW 4,961,160; KRW 4,676; KRW 115; KRW 00 for the amount of dividends against the Selection○○○○○○○○○○○; KRW 232,120; KRW 7 KRW 16,67; KRW 368,69; KRW 497; KRW 396,97; KRW 496; KRW 97; KRW 97; KRW 96,93; and KRW 97,93; KRW 96,49; and KRW 97; and KRW 94,500,96; and KRW 930,000; and KRW 96,397; and

1. Basic facts

A. The plaintiff and the designated parties (hereinafter collectively referred to as "the plaintiff et al.") are those who were employed in ○○ cans (hereinafter referred to as "○○ cans") and retired while serving as shown in attached Form 1.

B. As the plaintiff et al. and 6 other than the plaintiff et al. were not paid wages from the ○○ cans (in the case of the plaintiff, the selected party, including retirement allowances), the plaintiff was selected as the designated party, and the Seoul Seongdong-gu Seoul Metropolitan Government ○○dong 1 filed an application for provisional seizure against real estate under the heading 401 (hereinafter referred to as the "real estate in this case") in relation to ○○dong-type factory 656-1683, Seongdong-gu, Seoul (hereinafter referred to as the "the real estate in this case"). On January 14, 2008, the above court applied for provisional seizure against the real estate in the amount of KRW 495,148,786, which is the sum of wages and retirement allowances from the above court, and the company registration was completed on January 17, 2008. At the time of the above application for provisional seizure, the amount claimed by the plaintiff et al. was as stated in the corresponding column of attached Form 2.

(c)The 6th of the plaintiff et al. applied for the payment order for the delegation amount of KRW 495,148,786, on March 24, 2008 with the delegation amount of KRW 495,148,786, on the basis of the ○○○ cans, as the case may be, the District Court of Suwon-nam Branch support 2008 tea1363, and received the payment order for

D. On March 25, 2008, with respect to the instant real estate, the real estate auction procedure (hereinafter “instant auction procedure”) commenced with the Seoul Eastern District Court Decision 2008tagi4678 (hereinafter “instant auction procedure”) and was sold upon the application of Defendant ○○○○○○○○○○○, a collateral security right holder, for the instant real estate.

E. On December 12, 2008, the court of auction prepared a distribution schedule (hereinafter referred to as the "distribution schedule of this case") under which KRW 1,369,330 out of KRW 279,247,559 out of the amount to be actually distributed on the date of distribution, and KRW 236,89,630 out of the amount to be distributed to the defendant ○○○○○○○, Inc., a mortgagee, as a seizure right holder, who has the right of priority corresponding to the pertinent tax (hereinafter referred to as the "mortgage of this case").

F. Meanwhile, the Plaintiff et al. and the largest ○, Lee ○, and Kim Jong-soo did not request an auction court to distribute dividends not later than the date of the above distribution. However, as the dividend was excluded from the above distribution, the Plaintiff, present at the designated party, asserted preferential payment right of KRW 14,658,638 out of KRW 495,148,78,786, and raised an objection against the above distribution schedule, and then filed a lawsuit of this case seeking correction of the distribution schedule, such as the description of the purport of the claim. However, the above largest ○, Lee ○, and Kim Jong-soo withdrawn the lawsuit during the proceeding of this case.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, and the purport of the whole pleadings

2. The assertion and judgment

(a)wages and retirement allowances entitled to preferential payment;

Pursuant to Article 38(2) of the Labor Standards Act and Article 11 of the Guarantee of Workers' Retirement Benefits Act, "wages' wage claims for employees" and "retirement allowance claims for the last three years" can be paid in preference to claims secured by pledges or mortgages against the total assets of the employer, taxes, public charges and other claims.

Meanwhile, even if a wage creditor who has the right to preferential reimbursement under the Labor Standards Act is a wage creditor who has the right to preferential reimbursement under the Labor Standards Act, he/she shall demand a distribution by the date of distribution in the voluntary auction procedure, but may receive a preferential distribution. However, even if the person having the right to provisional seizure prior to the commencement of the auction procedure did not demand a distribution, he/she shall be treated as having demanded a distribution as naturally, and even if he/she did not submit a separate claim statement, he/she shall not be excluded from the distribution. Accordingly, in balancing the procedural legal request to ensure the stability of civil execution procedure and the substantive legal request to protect the worker's wage claim, if the wage creditor who has the right to preferential reimbursement under the Labor Standards Act did not prove that he/she is a priority claim until the commencement of the auction procedure, even if he/she did not prove that he/she is a priority claim until the distribution schedule becomes final and conclusive (see, e.g., Supreme Court Decision 2002Da487

On January 14, 2008, before March 25, 2008, the date of commencement of the auction procedure, the fact that the plaintiff et al. provisionally attached the real estate of this case on January 14, 2008 is identical to the above facts. Thus, the plaintiff et al. may be paid in preference to the defendant et al. within the scope of the "final three months' wage claim against the ○○ cans" out of the claim amount of provisional attachment and the "retirement allowance claim for the final three years' retirement allowance claim for the final three years."

B. Determination on wages and retirement allowance claims with preferential payment right of the plaintiff et al.

(1) Plaintiff Kim Jong-won

Comprehensively taking account of the above facts, Gap evidence Nos. 3 and the purport of the whole arguments, the plaintiff entered the ○○ canal on May 17, 2002 and retired on October 31, 2006, and the plaintiff provisionally seized the total amount of 26,694,490 won and retirement allowances from January 1, 2006 to October 31, 2006 as the claim amount and received an order for payment. The plaintiff's wage on August 2006 is 2,087,420 won, and the wage on September 2, 2006 is 2,087,420 won, and the wage on October 2, 2006 constitutes 2,020,083.

According to the above facts, the sum of wages for the last three months of the plaintiff's cans is KRW 6,194,923 (=2,087,420 + KRW 2,087,420 + KRW 2,020 + KRW 2,020,083).

In addition, the sum of wages for the three months prior to the plaintiff's retirement (92 days from August 1, 2006 to October 31, 2006) is 6,194,923 won, the average daily wage for the plaintiff at the time of the plaintiff's retirement (6,194,923 won ± 92 days) is 67,336 won (i.e., 6,194,923 won ± 92 days). The plaintiff's continuous service period is 168 days for the plaintiff's final three years of retirement allowance for the plaintiff's ○○ cans (6,060,240 won (= 67,336 won x 30 years).

Therefore, the Plaintiff’s claim is justified within the scope of recognition as above, since the Plaintiff has the right to receive a preferential distribution of KRW 12,255,163 (= KRW 6,194,923 + KRW 6,060,240).

(2) Selective gambling.

In full view of the above facts, Gap evidence Nos. 3 and the purport of the whole arguments, the facts that the designated person was employed in the ○○ cans on May 1, 2006 and retired on October 30, 2008, and that the above selected person was subject to a provisional attachment of the total of 50,146,90 won of the overdue wages from June 1, 2006 to December 31, 2007 as the claimed amount and received an order for payment (it is not known that the specific details of the claim amount at the time were not disclosed, but since the designated person thereafter retired on October 30, 208, it is deemed that the above claim amount was not included). According to the above facts, it can be acknowledged that the above selected person was the total of 50,146,990 won of the overdue wages from June 1, 2006 to December 31, 2007, the amount of wages of 305,1974,457.

Therefore, the above Appointor has the right to be preferentially distributed to the Defendants in relation to KRW 5,564,910, so the Plaintiff’s claim is justified within the above scope of recognition.

(3) Appointer leapon.

In full view of the above facts, Gap evidence Nos. 3 and the purport of the whole arguments, the facts of being entered in the ○○ cans on May 17, 2002 and retired on October 30, 2008, and the above son's total amount of wages from January 1, 2006 to December 31, 2007 as the claim amount of KRW 57,628,110 as to the real estate in this case and received a provisional attachment and payment order (it is impossible to know that the specific contents of the claim amount at the time were not disclosed, but since the above observer retired on October 30, 208, it is not deemed that retirement pay was not included in the above claim amount). According to the above Selection's final cans on the ground of the amount of wages of KRW 57,628,786,786,786,786,76,707,707,76,7607, etc.

Therefore, the above Appointor has the right to be preferentially distributed to the Defendants in relation to KRW 5,360,100, so the Plaintiff’s claim is justified within the above scope of recognition.

(4) Selection free evaluation

In full view of the above facts, Gap evidence Nos. 3 and the purport of the whole arguments, the Claimant's ○○○○ entered the ○○ cans on July 27, 2007 and retired on October 30, 2008. The above Appointor's claim amounting to KRW 39,728,800 in total from March 27, 2007 to December 31, 2007 and issued a provisional attachment and payment order with regard to the real estate in this case. The above Appointor's wages amounting to KRW 1,653,720 in proportion to the portion of November 207, 207, and the portion of wages on December 27, 2007 can be recognized as constituting 1,653,720 each, and thus, according to the above acknowledged facts, the plaintiff's claim for the above Appointor's wages amounting to KRW 49,616,1636,164,665,7.

(5) Selected maximum number of persons

In full view of the above basic facts, Gap evidence No. 3 and the purport of the whole arguments, the Selection-man's largest ○○ was admitted to ○○ cans on January 5, 2007 and retired on October 1, 2007. The above Selection-man's 14,074,380 won of the overdue wages from March 1, 2007 to October 31, 207 as claimed amount and received a provisional attachment and payment order. The above Selection-man's wages on Oct. 1, 2007; the amount of wages on Oct. 1, 2007; the amount of wages on Oct. 1, 2007; the amount of wages on Oct. 3, 2007 are 4,186,140,139,389) x 380 won (the above Selection-man's wages on the ○○ cans).

Therefore, the above Appointor has the right to receive dividends in preference to the defendants in regard to KRW 4,186,140, so the plaintiff's above assertion is justified within the above scope of recognition.

(6) The Appointor.

Comprehensively taking account of the above basic facts, Gap evidence No. 3 and the purport of the whole arguments, it can be acknowledged that the designated person was employed in ○○ cans on June 1, 2006 and retired on May 31, 2007, and that the said designated person was ordered to make a provisional attachment of the total amount of 36,383,930 won of the overdue wages and retirement allowances from June 1, 2006 to May 31, 207 with respect to the real estate in this case and issued an order to pay them. The above selected person's wages on March 3, 2007 are 2,24,040 won, and wages on April 1, 2007 are 2,24,040 won, and wages on May 2, 2007 are 2,171,651.

According to the above facts, the sum of wages for the last three months for the above ○ cans of the designated parties is KRW 6,659,731 (=2,244,040 + KRW 2,244,040 + KRW 2,244,040 + KRW 2,171,651).

In addition, the sum of wages for the three months prior to the retirement of the above selected person (92 days from March 1, 2007 to May 31, 2007) is KRW 6,659,731. The average wage for each day at the time of the above selected person's retirement is KRW 72,388 (=6,659,731 ± 92 days). The continuous service period of the above selected person is one year. Thus, the retirement allowance for which the above selected person's preferential right to payment to ○○ cans is recognized is KRW 2,171,640 (= KRW 72,388 x 30 days).

Therefore, the aforementioned designated person has the right to be preferentially distributed to the Defendants in relation to KRW 8,831,371 (= KRW 6,659,731 + KRW 2,171,640). Therefore, the Plaintiff’s above assertion is justified within the scope of the above recognition.

(7) Appointed G. G.O.

In full view of the above facts, Gap evidence No. 3 and the purport of the whole arguments, the facts that the selected Kim Jong-man entered the ○○ cans on May 17, 2002 and retired on December 31, 2006, and that the above appointee was ordered to make a provisional attachment and payment of the total of 37,624,810 won of the overdue wages and retirement allowances from January 1, 2006 to December 31, 2006 as the claimed amount, and the above appointee was ordered to pay the wages of 2,628,020 won on October 206, 2006, and the wages of 2,628,020 won on November 20, 2006, and the wages of 2,628,020 won on December 2, 2006 to 2,543,245.

According to the above facts, the sum of wages for the last three months for the ○○ cans of the above designated parties is KRW 7,79,285 (=2,628,020 + KRW 2,628,020 + KRW 2,628,020 + KRW 2,543,245).

In addition, the total amount of wages for the three months prior to the retirement of the above selected person (92 days from October 1, 2006 to December 31, 2006) is KRW 7,79,285. The average daily wage for the above selected person at the time of retirement is KRW 84,774 (=74 7,79,285 ± 92 days). The continuous service period of the above selected person is four years and 229 days. Thus, the retirement allowance for the last three years for the above selected person's ○ cans (84,774 x 30 days) is KRW 7,629,660.

Therefore, the aforementioned Appointor has the right to receive dividends in preference to the Defendants in relation to KRW 15,428,945 (= KRW 7,799,285 + KRW 7,629,660). Therefore, the Plaintiff’s above assertion is justified within the scope of the above recognition.

C. Determination as to the defendants' assertion

The defendants asserted that the plaintiff et al. did not receive wages from the ○ cans on March 24, 2008 and filed an application for payment order with the ○ cans on March 24, 2008. In light of the fact that the plaintiff et al. failed to submit all supporting documents as to the claim statement and the claim for wages until the date of distribution from the auction procedure of this case, the plaintiff et al. asserted that the overdue wages, etc. claimed by the plaintiff et al. are false claims operated by public offering with the ○ cans. However, the above circumstance alone does not make it difficult to conclude that the plaintiff et al.'s wage claim is false, and that the plaintiff et al. had wage claim with the ○ cans, and therefore the above argument by the defendants

3. Conclusion

Thus, among the distribution schedule of this case, ① KRW 12,255,163 of the dividend amount for the plaintiff, ② KRW 5,564,910 of the dividend amount for the selected ○○○○○○, ③ KRW 5,360,100 of the dividend amount for the selected ○○○○○○, ④ KRW 4,961,160 of the dividend amount for the selected ○○○○○○○, ⑤ KRW 4,186,140 of the dividend amount for the selected ○○○○○○, ⑤ KRW 8,831,371 of the designated ○○○○○○, and KRW 0 of the dividend amount for the designated ○○○○○○○○○○○, and KRW 15,428,945 of the dividend amount for the designated ○○○○○○○, and the plaintiff’s claim to correct the dividend amount and KRW 23689,6309,409,929,29.