Tong-2015-Shap-11355 ( November 30, 2016)

If it is unclear that the assumption of an obligation is exempted or overlapped, it shall be deemed to be an overlapping acceptance, and it shall not be determined whether the application for substitute payment exists or not.

In order to become an exemption from liability, the consent of the obligee on the assumption of the obligation with respect to the exemption from liability is required, and criminal complaint or application for substitute payment is only a right which the worker can exercise in order to recover the unpaid wage claim, and cannot serve as a requirement for remedy or a ground for determining the existence of the unpaid wage claim.

Article 38 of the Labor Standards Act (Preferential Payment of Wage Claim)

(a)2016Na25587 Unjust Enrichment

AAA foreign country

BBB

November 2, 2017

November 23, 2017

1. All appeals filed by the Defendant against Plaintiff Ba, Mab, Nocc, Nodd, Kime, Choe, Chog, Shing, Hhhhhh, Kimii, Jeongj, and westk are dismissed.

2. Of the judgment of the court of first instance, the part against the plaintiffs leap, mm, nnn and the defendant against the defendant against the plaintiff Gabf is revoked, and all of the plaintiffs' claims corresponding to the revoked part are dismissed.

3. (a) The part of the judgment of the court of first instance against the defendant in excess of the amount ordered under the following among the part concerning the plaintiff Hoo, Jeonp, Kimq, Kimr, Grrr, booms, amu, Mu, v, and Ew, shall be revoked, and all of the above plaintiffs' claims corresponding to the revoked part shall be dismissed.

"The defendant shall pay to the above plaintiffs 5% interest per annum from December 2, 2015 to November 30, 2016, and 15% interest per annum from the next day to the day of complete payment."B. The defendant's remaining appeal against the above plaintiffs is dismissed.

4. A. The defendant's appeal against the remaining plaintiffs (attached Form 4) is dismissed.

B. The part of the judgment of the court of first instance against the above plaintiffs in paragraphs (a) and (b) of Article 1-1 of the Disposition was modified as follows in accordance with the reduction of claims by this court.

1) The defendant shall pay to the plaintiffs listed in attached Form 4-A (A) of the separate list by plaintiffs 4-A of the separate list by plaintiffs 2, the amount of money stated in the "amount of prize in the separate list by plaintiffs 3" and the amount calculated by the rate of 15% per annum from December 2, 2015 to the date of complete payment.

2) The defendant shall pay to the plaintiffs listed in attached Form 4-b (b) of the separate list of plaintiffs 4-B of the separate list of plaintiffs 2, the amount of money stated in the "amount of prize" in the separate list of plaintiffs 3, and 5% per annum from December 2, 2015 to November 30, 2016, and 15% per annum from the next day to the date of full payment.

5. The costs of appeal against the plaintiffs in the above 1.1. and 4. A. are borne by the defendant, and the total costs of appeal between the plaintiffs and the defendant in the above 2.2. The above plaintiffs are borne by the above plaintiffs, and 60% of the total costs of lawsuit between the plaintiffs and the defendant in the above 3. A., the above plaintiffs are borne by the defendant, respectively.

1. Purport of claim

"The defendant shall pay to the plaintiffs 15% interest per annum from the day following the day of delivery of a copy of the complaint of this case to the day of complete payment" and the purport of appeal 1.

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiffs' claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s judgment to be stated in this case is as follows, except for the modification and addition of corresponding parts of the judgment of the court of first instance and the re-use of the conclusion parts, and therefore, it is consistent with the reasoning for the judgment of the court of first instance.

○ Change and addition of Sub-section 12 to 14 as follows:

The salary for August 2015 for which the plaintiff was not paid from Il Q is the smaller of the amount of the "amount on August 2015 or the "amount on the salary ledger" alleged by the plaintiff in attached Table 3 (hereinafter referred to as the "attached Table 3"), and the bonus for August 2015 for which the plaintiffs did not receive is the same as the amount in attached Table 3, "the bonus for August 2015".

According to the plaintiff Ba, raisingb, No. c, Nodd, Kime, Carx, Jy, Bab, Mac, Mac, Mad, Goof, Goog, Goog, Sag, Sag, Hhhhhh, Kimbd, Ghhhhhhhh, Hag, Hakkk's remaining plaintiffs, other than the plaintiff Babb, No. 3 of the PPP branch office on February 5, 2016, received substitute payment for unpaid benefits such as the plaintiff x, Jymp, Kim z, Mab, Mad, Mad, Mad, Mad, Gaf, Mahhhhhhhh, Kim Jongk, Hakk's claim for substitute payment from the PP branch office on the PP branch office of the PPP branch office of the PP branch office of the court.

Accordingly, the plaintiffs' unpaid benefits after receiving the substitute payment is the same as the amount stated in the "amount of the winning in the trial" in the attached Table 3 (the "amount of winning in the trial" of 14 persons such as plaintiffs xxx, etc. shall be recognized within the scope of the "amount of the claim in the trial").

○ 3. Of the 15 to 16 categories (based on recognition), the following is added to the 3.16 categories (based on recognition), “The entry of Category A 10; the PPP branch office of this court; and the results of each fact-finding inquiry into PP branch office of the Korea Labor Welfare Corporation.”

○ Amendment to Parts 7, 9 to 14 as follows:

【3) The Defendant asserted that: (a) Plaintiff Maa, Daddd, kyx, Jyx, Mazz, Bab, Mae, Tao, Guof, Kaf, Maah, Mai, LbC, Kimbd, hhhh, and west did not file an application for substitute payment even though the Defendant filed a criminal complaint against Japan Q, and (b) Plaintiff Kime, Mafff, Kadd, and west did not file an application for substitute payment as well as an application for a criminal complaint; and (c) in light of these circumstances, the above Plaintiffs asserted that there was no unpaid payment or no employee of Il Q.

However, a criminal complaint or an application for substitute payment is only the right that a worker can exercise in order to recover the unpaid wage claim, and cannot be the basis for the requirements for remedy or for the determination of the existence of the unpaid wage claim. However, according to the results of the Japanese Q's wage ledger (No. 8-1 and No. 3) and the fact-finding inquiry report with respect to the Korea Labor Welfare Corporation of this court, the above plaintiffs are both workers of Q Q and are sufficiently recognized that there exists the unpaid wage as shown in the attached Table 3. Therefore, the defendant's above assertion is rejected.

4) The plaintiff leap, m, nn, Chobf [Attachment 2] List of Plaintiffs 2 [Attachment 2]

The plaintiffs mentioned in Paragraph 2) do not have any amount remaining when deducting ‘actual substitute payment' from ‘actual claim amount' in the attached Table 3 attached hereto, and the above plaintiffs' claims are without merit.

Of the classification by the plaintiffs, each plaintiffs (including all the plaintiffs who have not reduced or exempted their claims in the trial) listed in paragraphs 1 and 4 of the attached Table 2 are well-grounded, and the plaintiffs' claims by the plaintiff oo, electricp, Kimq, Kimr, Kimr, grr, gamblings, Tu, UV, UV, and Ew (the plaintiffs listed in paragraph 3 of the attached Table 2) are justified within the scope of the "amount of quoted money in the trial" listed in the attached Table 3, and there is no reason for the remainder.

○ 9. The following shall be added below the last page:

“The Defendant alleged to the effect that there is no unpaid bonus for the Plaintiffs since the bonus for August 2015, 2015, which the Plaintiffs did not receive from Japanese Q, was paid by PP on September 10, 2015 by PP, but there is no evidence to acknowledge it merely with the descriptions of Gap evidence 8-2 and Gap evidence No. 9.

3. Conclusion

Therefore, the plaintiffs' claims as stated in the attached list 2 (2) are dismissed, and the plaintiffs' claims as stated in the attached list 2 (3) are accepted within the above scope of recognition, and the remainder is dismissed, and each plaintiffs' claims as stated in the 1 and 4 should be accepted.

Therefore, the defendant's appeal against the plaintiffs listed in paragraph (1) of the attached list No. 2 is dismissed as it is without merit. Since the defendant's appeal against the plaintiffs listed in paragraph (2) is with merit, the part against the plaintiff leap, m, nn, and the part against the defendant against the plaintiff Gab in the judgment of the court of first instance, and the part against the plaintiff Gabf is revoked. The part against the plaintiffs listed in paragraph (3) of the attached list No. 2 is revoked in the judgment of the court of first instance, which corresponds to the part against which the defendant's appeal is partially accepted, and the part against the defendant's claim against the above plaintiffs is revoked, and the remaining appeal against the above plaintiffs is dismissed. The plaintiffs listed in paragraph (4) of the attached list No. 2 shall be accepted in the court of first instance, and all of the claims against the remaining plaintiffs have been reduced as a whole, and it is so decided as per Disposition No. 1 (a) and (b) of the judgment of the court of first instance.