(영문) 부산지방법원 2015.12.18. 선고 2015구합1732 판결

A. On June 10, 2013, the Plaintiff joined C Co., Ltd. (hereinafter referred to as “C”) that is engaged in the business of manufacturing new products in Busan, Seo-gu B, Busan, and was discharged from the office of general manager on March 3, 2014, and C was closed on July 31, 2014.

B. D, the representative of C, determined that it is difficult to operate the business under C as much as the account is seized due to reasons such as default and delayed payment of wages, etc., and that it is difficult to reconcilate funds. On June 25, 2014, after establishing and registering a personal business chain F in the name of the wife E, and continuously operating the business by using C’s facilities, employees, etc. at the same place, and eventually closing the business on June 1, 2015.

C. On May 26, 2014, the Plaintiff filed a lawsuit with the Busan District Court seeking payment of KRW 7,741,930 for unpaid wages (2014 Ghana78386) and was rendered a judgment in favor of the said court on August 26, 2014, and the said judgment became final and conclusive around that time.

D. After October 7, 2014, the Plaintiff (hereinafter “Plaintiff”) pursuant to Articles 4 and 5 of the Enforcement Decree of the Wage Claim Guarantee Act to the Defendant.

C Application for recognition of bankruptcy, etc. (hereinafter referred to as "application of this case") but the defendant on 2015.

3. 26 On the following grounds, a disposition of non-recognition of bankruptcy, etc. (hereinafter referred to as the “instant disposition”) was rendered.

Where the same business owner converts C to F at the same place, the labor relationship is succeeded, and the recognition of bankruptcy, etc. is determined based on F, the final place of business, and the F is not a process of discontinuation or discontinuance of business because it is verified during suspension of business. Therefore, it is not recognized because it does not meet the requirements under Article 7 of the Wage Claim Guarantee Act and Article 5(1) of the Enforcement Decree

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1, 4 (including branch numbers for those with additional numbers), Eul evidence Nos. 1, 2, 3 and 7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff retired from office before the establishment and registration of F, and thus, the instant disposition was unfair on the ground that C’s employment relationship was succeeded to F.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The term "transfer of business" means a business entity organized by a certain business purpose, i.e., a business entity that maintains its identity and transfers only part of its business, which can be transferred, and where such a transfer of business has been made, in principle, a labor relationship with the relevant worker and the business that takes over the business comprehensively (see Supreme Court Decisions 2000Du8455, Mar. 29, 2002; 91Da15225, Aug. 9, 1991). Whether the transfer of business can be viewed as a transfer of business should be determined depending on whether the transferee can be deemed to continue the same business activity as the transferor continues to operate after the transfer of functional property as the source of revenue that has been systematically organized (see Supreme Court Decision 2010Da35138, Sept. 30, 201). Such transfer of business does not necessarily need to be explicitly agreed upon between the parties to the transfer of business (see Supreme Court Decision 201Da7138, Jul. 13, 20197). 2007

Meanwhile, according to Article 7 of the Wage Claim Guarantee Act and Article 5 (1) of the Enforcement Decree of the same Act, where a retired worker without receiving wages, etc. applies for the business, the defendant must find out the fact of insolvency, etc. on behalf of the business owner who is liable to pay the unpaid wages, etc. upon application by the business owner. Furthermore, upon application by the worker, the employer must pay the unpaid wages, etc. on behalf of the business owner who has obtained recognition of bankruptcy, etc. However, the Wage Claim Guarantee Act aims to contribute to the stabilization of workers’ livelihood by taking measures to guarantee the payment of unpaid wages, etc. because it is impossible to continue the business due to business fluctuations, industrial structure changes, etc., or to ensure the payment of unpaid wages, etc. to the retired worker without receiving the unpaid wages, etc. (Article 1), limited to cases where there are objective reasons for which the business owner is not entitled to receive unpaid wages, etc., and even if the business owner comprehensively succeeds to the business owner's employment relationship after transferring the business, it is difficult to view that the business owner has the obligation to pay unpaid wages, etc.

2) However, according to the above circumstances, it is reasonable to view that C and F maintain the identity of the human and material organization and thereby F comprehensively took over the business of C and F also have the obligation to pay unpaid wages, etc. by succession to labor relations. Since F continues to engage in the business at the time of the instant application or disposition, it cannot be deemed that the business of the business owner who is liable to pay unpaid wages, etc. to the Plaintiff was discontinued. Thus, the instant disposition is lawful.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.