(영문) 서울고등법원 2015.3.6. 선고 2014누42300 판결

A. On December 13, 2010, the Plaintiff entered a stock company B (hereinafter “B”) and was in charge of accounting and management affairs. From April 2012, B delayed payment of wages to the Plaintiff, the Plaintiff was treated on October 25, 2012.

B. Meanwhile, C, who worked as the head of division in B, was established on July 25, 2012, and the Plaintiff left B on September 2, 2012 and entered D on November 1, 2012.

C. On January 17, 2013, under the premise that the business of B was discontinued, the Plaintiff applied for the fact-finding of B, such as bankruptcy, etc. under Articles 4 and 5 of the Enforcement Decree of the Wage Claim Guarantee Act. However, the Defendant rendered a non-recognition disposition as to the said request (hereinafter “instant disposition”) on the ground that “Although the Defendant applied for the fact-finding of B’s bankruptcy, etc. on the ground that “It was confirmed that D was established at the same place and most workers succeeded to employment, and that the same business was operated by utilizing the same assets and the same business network, and thus, it is not actually in the process of business discontinuance or discontinuance.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2 and 5, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

B The representative director F transferred only part of the business facilities to C and discontinued the business, and C independently establishes a new company D and newly employs the existing employees. D is a separate company that has no relationship with B, and even if implicitly and implicitly, it did not enter into a contract for business takeover and take over the business comprehensively, the business was discontinued. As such, the Plaintiff established the requirement of the “business discontinuance” under the Enforcement Decree of the Wage Claim Guarantee Act, even though the Defendant did not recognize the existence of bankruptcy, etc. as to B, the disposition of this case, which was not recognized otherwise, is unlawful.

2) The defendant's assertion

B and D are substantially the same companies, and even if they are not substantially the same companies, B's businesses are comprehensively taken over by D, so their businesses cannot be deemed to have been discontinued.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Relevant legal principles

The term "transfer of business" means a company organized for a certain business purpose, i.e., a company that maintains its identity and transfers only a part of its business as a whole, which can be transferred, and where such transfer of business is conducted, in principle, a company that takes over the relevant worker's labor relationship (see Supreme Court Decisions 2000Du8455, Mar. 29, 2002; 91Da15225, Aug. 9, 199). 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 that of the transferor after the transferee transferred functional properties as the source of profits formed organically (see Supreme Court Decision 2010Da35138, Sept. 30, 201). Such transfer of business does not necessarily require an express agreement between the parties to the business, but is also possible by a contract (see Supreme Court Decision 2017Da1537, Jul. 17, 2017). 2015>

Meanwhile, according to Article 7 of the Wage Claim Guarantee Act, and Articles 4 subparag. 3 and 5(1) of the Enforcement Decree of the same Act, the defendant must determine whether a retired worker without receiving wages, etc. applies for the payment of unpaid wages, etc., as he/she satisfies the requirements, such as the discontinuation of the business, and shall determine whether the employer is liable to pay unpaid wages, etc., and further pay unpaid wages, etc. on behalf of the employer who has received the fact-finding of bankruptcy, etc. upon the request of the worker. However, the Wage Claim Guarantee Act provides that it is impossible to continue business due to business fluctuations, industrial structure changes, etc.

The purpose is to contribute to the stabilization of workers’ livelihood by preparing them (Article 1), and only if there are objective grounds for which the employee is not entitled to receive unpaid wages, etc., the employer is obligated to pay the Defendant, and even if the employer comprehensively succeeds to the employment relationship of the relevant employee after transferring the business, the transferee company is also obligated to pay the unpaid wages, etc. to the relevant employee as the transferee company who has succeeded to the employment relationship, even if the employer files a report on discontinuance of business as to the transferred business and fails to engage in the relevant business, it is difficult to view that there is "the discontinuation of business" under the Wage Claim Guarantee Act.

2) Determination

Based on the above legal doctrine, comprehensively taking account of the following circumstances, which can be known by adding the whole purport of oral proceedings to the testimony of the health team, Gap evidence Nos. 1, 3, 4, Eul evidence Nos. 1, 5, 6, 7, 9, and 12 of Eul, Eul’s testimony of the witness witness F of the party trial, and witness C of the party trial, it cannot be deemed that Eul is substantially the same as Eul, but it is reasonable to view that Eul comprehensively taken over the business of the public construction industry sector of Eul and succeeded to labor relations with the plaintiff. Therefore, it cannot be deemed that the business of the business owner who is liable to pay unpaid wages, etc. to the plaintiff was discontinued, and thus

① In around 194, B, as a company established in around 1994, had engaged in civil engineering construction business as an item of business, and had engaged in overseas mine business from around 2008. The representative director F, while engaging in the overseas mining industry only, did not participate in civil engineering construction business at all, and C, which was a director, actually engaged in civil engineering construction business.

② Around June 2010, B asked C to the extent that management becomes worse due to the poor performance of the overseas mining industry, due to the delay in the rent of the office due to the lessor’s demand for withdrawal from the office, and B asked C to the effect that “B will leave the office,” and the C responded to the purport that “B will not become a new juristic person because it is too much due to a dispute between B and B,” and that “F would become known.” (3) around July 2010, C acquired the lease deposit claim with respect to B’s office (hereinafter “instant office”) in the name of D and agreed to settle its part. In addition, C was recommended to obtain the consent from F and C to move the status of the office of this case to B (Seoul E and five floors) where the office of this case is located. Accordingly, it is reasonable to deem C and C concluded the lease contract with D.

④ When establishing C, July 25, 2012, and D, C shall register the Plaintiff as an intra-company director, and complete its business registration.

⑤ At his own money, C paid the overdue charge of the instant office, and leased the instant office in the name of D on August 1, 2012.

② Employees in the fields of civil engineering and construction industry in B were six persons including the Plaintiff, but all employees in the field of employment insurance were disqualified on September 2, 2012, and five persons, excluding C, are recorded as having acquired employment insurance qualification in D on November 1, 2012 or January 1, 2013.

7. However, unlike the above employment insurance content, the above employees continued to work in the office of this case except for three days, while performing the same duties as the previous employees.

8) Although employees in the above fields of civil construction and construction industry have been employed in B and D without unemployment, C did not report the acquisition of employment insurance qualification for the purpose of unjust receipt of unemployment benefits and received unemployment benefits from the said employees. C was replaced by the unemployment benefits for which part of the wages for the said employees were illegally received, and paid only the remainder of the unemployment benefits exceeding the unemployment benefits amount, before the aforementioned facts are discovered to the Defendant.

9) In arranging the fields of civil construction industry B, F transferred assets necessary for performing civil construction business, such as office fixtures and fixtures, civil engineering designs and measurement software (GeOXD) to C, thereby settling overdue rent, oil cost, etc. paid by C in lieu of C.

(10) Services in the civil construction sector, which had not been completed before the closure of the business, were conducted by D, and most customers in the civil construction sector of B were customers of D.

① The F reported the closure of business on October 10, 2012, 25. For this reason, F stated that “F was closed in relation to civil engineering and construction projects from July 25, 2012, when there is a legal entity to receive an investment in an overseas mining industry.”

(12) In light of the above ① to 1, it is reasonable to view that D, as a result, has the same human composition and assets as that of B in the civil construction industry sector, was engaged in independent business activities as that of B, and that there was a mutual agreement between C and F, the representative director of each company, with respect to the civil construction industry sector of B, maintaining the identity of the human and material organization of B, as a whole, as D (B).

(13) Where the business is transferred, the labor relationship of the employee who refuses to succeed to the labor relationship still exists between the transferring company and the transferring company. However, it is reasonable to deem that the Plaintiff consented to the succession of the labor relationship by continuing to provide the normal labor in D with the establishment of D without any special objection or refusal after the transfer of the business.

0) The Plaintiff asserts to the effect that C did not intend to acquire the business even with knowledge of the enormous debt of B is contrary to the common sense, and thus, it does not constitute the content of the business takeover. However, in principle, the assumption of obligation does not constitute the content of the business takeover, but the transferee, who belongs to the trade name under Article 42 of the Commercial Act, is jointly and severally liable with the transferor for the business obligation of the transferor in accordance with the legal principles of appearance (in this case, the transferee may escape from the liability for repayment by registering the transferor's obligation without delay after receiving the business transfer or notifying the creditor of the purport that the transferor is not liable for the transferor's obligation without delay), and it cannot be deemed that the intent to assume the obligation is naturally included in the intent to accept the business takeover. Moreover, since the enormous debt of B is mainly caused by the depression of the overseas mining industry sector, it cannot be concluded that D comprehensively transferred the business, as long as it is difficult to transfer the business, or that the profitability was

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.