(영문) 서울고등법원 2011.4.27. 선고 2010누28511 판결

On February 11, 2010, the Defendant revoked the disposition of non-recognition of bankruptcy, etc. against the Plaintiff. 2. The purport of the appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

On November 19, 2009, the Plaintiff filed an application for recognition of bankruptcy, etc. with the Defendant, which was not paid wages and retirement allowances (hereinafter referred to as "voluntary payment, etc.") due to the abolition of his/her workplace (B).

On February 11, 2010, the defendant made a decision not to grant recognition on the ground that there is a lack of evidentiary materials to verify whether the requirements for recognition of bankruptcy, etc. are met (hereinafter referred to as the "disposition in this case") based on the following points.

① In 2008, it is difficult to verify the details of delayed payment, such as the data that the Plaintiff submitted without going through the verification by the business owner, the actual period of work, the number of regular workers, and the monthly rent.

(2) Business registration is still in the state of business closure, and the business owner's whereabouts are unknown with gold-processing machines and computers that enable the business owner to engage in his/her business activities, and it is not possible to verify whether the business owner continues to engage in his/her business activities. (3) Even if it is based on the plaintiff's statement concerning the assets held by the business owner, it is not clear, and there is only the register of corporate register and the real estate auction case data, and it is difficult for the business owner to determine that the business owner has no ability to pay wages, etc. or it is considerably difficult

(4) No confirmation of the fact shall be made with respect to the nature of power of attorney, conclusion process, scope of repayment of wage claims, etc. prepared between the business owner and applicant.

[Ground of recognition] The entry of Gap evidence No. 1 and the purport of the whole argument

2. Whether the instant disposition is lawful

A. According to Article 5(1)1 of the Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 2269, Jul. 12, 2010; hereinafter the same), the grounds for disposition ① and (4) as to a claim, in order to obtain recognition of bankruptcy, etc., the applicant is a retired worker who has not received wages, etc., and the number of full-time workers at the place of business within the scope of one week should not exceed 30

However, in full view of the evidence Nos. 2 and 3, 4, 5, 7, and 8, the labor inspector affiliated with the defendant was investigated upon the plaintiff's application and found that the plaintiff worked in B, which is the workplace of this case from June 1, 2006 to March 28, 2009, and that the number of workers in B is 13. Meanwhile, in the case where the plaintiff filed a complaint against B, on the ground that the payment of wages was not made before the plaintiff's application of this case, the defendant issued 13 workers, including the plaintiff, who did not receive 71,689,560 won in total, including wages and retirement allowances, from the business owner of this case.

According to the above, at the time of the disposition of this case, the defendant himself confirmed that he had worked in a workplace with not more than 300 full-time workers and had retired workers without receiving wages, etc. It can be said that the plaintiff's actual working period, details of overdue money and valuables, and the reasons for disposition that the plaintiff cannot confirm the full-time workers of B cannot be a legitimate reason for disposition.

On the other hand, the defendant asserts that, as a ground for disposition 4, as to the power of delegation that B's business owner transferred the claim 24.2 million won against C on March 30, 2009 with respect to the payment of unpaid wages and retirement allowances to the plaintiff who is the representative of workers, the plaintiff denied the existence of the original power of delegation, but subsequently reversed the statement, and since the date when the power of delegation was drawn up falls after March 30, 2009, the business owner's unknown whereabouts ( March 28, 2009), it is difficult to believe that the payment of overdue wages exists only by such power of delegation, and it is difficult to believe that the transfer of the claim was substituted for the payment of overdue wages (if so, there is no overdue wages equivalent to the amount thereof) or simply for the payment of overdue wages, and therefore, the existence of overdue wages is unclear in this respect.

However, even if there are circumstances that make it difficult to believe the contents of power of attorney as they are, as alleged by the Defendant, in light of the facts acknowledged earlier, such circumstance alone cannot be readily concluded that there exists no overdue wage. Moreover, barring any special circumstance, it is presumed that an obligor transfers other claims in relation to the repayment of obligation to a creditor by means of a security for repayment of obligation or a method of repayment, barring any special circumstance, it is presumed that the obligor transfers the obligation to a creditor by means of a security for repayment of obligation or a method of repayment, not a substitute for the repayment of obligation (see Supreme Court Decision 95Da16660, Dec. 22, 1995). Therefore, the reason under paragraph (4) cannot be a legitimate ground for disposition, even though it is impossible to confirm the nature of power of attorney, the process of conclusion, the scope of payment of wage claims, etc.

However, such assertion constitutes an unlawful addition and alteration of the reason for disposition, as it is difficult to view that the original reason for disposition is identical to that of the original reason for disposition, as it is not specified. In addition, the mere fact that the demand for distribution was not made by the period for demand for distribution cannot be deemed to have waived the claim. This part of the allegation is without merit

B. Article 5(1)2 of the Enforcement Decree of the Wage Claim Guarantee Act provides that the business is discontinued as one of the requirements for recognition of bankruptcy, etc., or the main production or business activity of the business is suspended for not less than one month, etc.

However, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 3 through 5 and 22, it can be acknowledged that, since the business was discontinued from March 28, 2009 due to the unknown whereabouts of the business owner B, all workers including the Plaintiff were retired, and the auction procedure was in progress on the site and building of the instant workplace owned by the business owner, and the labor inspector belonging to the Defendant had visited the instant workplace on August 31, 2009 and confirmed that the present door of the workplace was unlocked, and that there was no person who had access to the instant workplace after the closure of the workplace on March 2009 from the nearby employees, and that any machinery and equipment in the workplace took place.

According to this, B, at the time of the disposition of this case, has already been a major production or business activity for at least one month.

However, it is reasonable to view that the business meets the above requirements in the process of discontinuance of business.

In addition, even if the defendant's assertion that business registration has not been reported as a result of closure, and the business owner is likely to continue to engage in business in another place because he/she has a gold processing machine and computer capable of business activities, and his/her whereabouts are unknown after the business activities are carried out, such circumstance alone cannot be viewed differently.

Therefore, this part of the reason that the business owner's continued business activities cannot be confirmed cannot be a legitimate reason for disposition.

C. Article 5(1)3 of the Enforcement Decree of the Wage Claim Guarantee Act regarding the grounds for disposition (3) provides for the employer’s ability to pay wages among the requirements for recognition of bankruptcy, etc.

3. The payment of wages, etc. is not capable of paying wages, etc. or is considerably difficult due to the grounds falling under any of the following items:

(c) Where it is deemed that at least three months will take place from the date of application for recognition of bankruptcy, etc. in order to liquidate or recover the assets of the business owner;

In light of the interpretation of the above provision, barring any special circumstance, if there is a reason under item (a) or (b), it shall be deemed as satisfying the requirements for the employer’s ability to pay wages, etc. in principle.

However, according to the evidence employed earlier, B’s business owner is missing for at least one month from March 28, 2009 to February 11, 2010, which was the time of the instant disposition, and the auction procedure is in progress with respect to the site and building of the instant business establishment, which is the property of the business owner. The date of distribution can be seen as May 17, 2010 and can be seen as having known that the Plaintiff applied for the instant case for the realization of the said date for at least three months from November 19, 2009 and satisfies all the requirements under items (a) and (b). Therefore, it is reasonable to deem that the payment of wages, etc. is considerably difficult, barring any other special circumstances.

Although it is difficult for the Defendant to determine that the business owner has no ability to pay wages, etc., or it is considerably difficult for him to pay wages, etc., on the grounds that the Plaintiff’s statement, the certified transcript of corporate register and the records of real estate auction are insufficient to know the current status of business partners, the records of accounts receivable, and the personal assets of the business owner. However, in this case where the grounds of items (a) and (b) are recognized, such circumstance alone cannot be readily concluded to fall

On the other hand, the defendant asserts that if an employee, such as the plaintiff, etc., obtained a claim of KRW 24,200,000 from the employer, and the sales price of the site and building for the business place was KRW 1,466,00,000,000, and the demand for distribution was made within the period of demand for distribution ( September 21, 2009), it is possible to receive a full preferential payment of the overdue wages, and thus, the employer at the time had the ability to pay the wages, etc., as seen above.

However, the above content constitutes an illegal addition, alteration, etc. of the ground for disposition, which is difficult to recognize its identity in comparison with the original ground for disposition as seen earlier, and thus cannot be deemed a legitimate ground for disposition.

In addition, the relevant statutes, such as the Wage Claim Guarantee Act, do not clearly state the circumstance that an employee was able to receive wages in arrears when he/she actively takes measures for preserving claims, as a passive reason for not being able to recognize the fact of bankruptcy, etc. Therefore, even if the employer is unable or significantly difficult to pay wages due to the fact that an employee was negligent in taking measures for preserving claims under the interpretation of the aforementioned provisions, barring any special circumstance that can be recognized as an anti-social act that constitutes a criminal act due to a public offering with the employer, such circumstance may not be considered as grounds for refusing recognition of bankruptcy, etc

However, in the case of this case, the fact that the plaintiff et al. did not demand a distribution by the deadline for demanding a distribution is merely derived from the worker's legal integrity, such as the plaintiff et al., and is made under the anti-social intent, such as competitive recruitment with the business owner. Accordingly, this part of the assertion cannot

3. Conclusion

As seen above, the disposition of this case cannot be a legitimate ground, and thus the disposition of this case must be revoked in an unlawful manner. The judgment of the court of first instance is justifiable in that it is consistent with this conclusion. The defendant's appeal is dismissed as it is without merit.