(영문) 서울고등법원 2015.3.19. 선고 2014누64621 판결

A) On December 10, 2010, the Plaintiff joined B Co., Ltd. (hereinafter “instant company”) and worked as an instructor at CResearch Institute, which is its branch office, and retired from office on December 11, 201.

B) The instant company was declared bankrupt by the Seoul Central District Court on March 6, 2012.

C) On December 12, 2012, the Plaintiff concluded an employment contract with the instant company and worked from October 1, 201 to December 11, 201, the Plaintiff asserted that the instant company failed to receive the payment for October 11, 201 and retirement allowances during the said service period, and filed a claim for confirmation of eligibility for substitute payment and substitute payment with the Defendant on December 12, 2012.

D) On February 22, 2013, the Defendant: (a) provided labor under direct management and supervision by D Co., Ltd. (hereinafter “D”) that is the parent company of the instant company; (b) on February 22, 2013, on the ground that the instant company was an employer under Article 2 of the Labor Standards Act; and (c) the Plaintiff provided labor under direct management and supervision by D (hereinafter “D”); and (d) the Plaintiff’s employer issued a non-eligible disposition for substitute payment (hereinafter “instant

E) On March 29, 2013, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission dismissed the said request on January 21, 2014.

[Ground of recognition] The fact that there is no dispute, Gap's evidence 3-2, Gap's evidence 6 and 7, and the purport of whole oral argument

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

C. The Plaintiff’s work is the location managed and operated by the instant company. Since the Plaintiff received benefits from the instant company, the instant company constitutes a business owner as prescribed by the Wage Claim Guarantee Act. Therefore, the instant disposition made on the premise that the instant company is not a business owner as prescribed by the Wage Claim Guarantee Act is unlawful.

2) The defendant's assertion

Whether a business owner under Article 2 subparag. 2 of the Wage Claim Guarantee Act is determined on the basis of a substantial labor relationship. The instant company only existed in the name and form, but actually operated and managed a CEA by a stock company that combines D and D (hereinafter referred to as “E”, and hereinafter referred to as “D et al.”). Therefore, the instant disposition is lawful since D et al. is a business owner prescribed in the Wage Claim Guarantee Act against the Plaintiff.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

A) On November 4, 2009, the instant company was a corporation established for the purpose of engaging in the online education information industry, the private teaching institute business, etc., and established as its branch office in Incheon or Busan (hereinafter referred to as “C Teaching Institutes, etc.”) or Busan (hereinafter referred to as “the foregoing private teaching institutes, etc.”).

B) On November 25, 2009, D acquired 790,50 shares of the instant company from M et al. and six existing shareholders of the instant company from M et al., the former shareholders of the instant company, and E merged D, the largest shareholder of the instant company and the parent company, on December 5, 201.

C) On December 10, 2010, the Plaintiff entered the instant company and received benefits from the instant company until December 11, 201, from the C&A, which is its branch office, etc.

D) On May 17, 2011, the board of directors of the instant company delegated the authority to make all decisions with respect to the financial management, personnel management, and operation of the instant company to D. Accordingly, D directly operated and managed the instant company’s branch offices from June 201, including personnel management, labor, and accounting management.

E) On December 9, 2011, E filed a petition for bankruptcy with the Seoul Central District Court 201Hau168 against the instant company. On March 6, 2012, the said court declared the instant company bankrupt and appointed attorney J as a trustee in bankruptcy. The said trustee in bankruptcy classified the instant company’s arrears claims against approximately 80 persons, including the Plaintiff, as estate claims taking precedence over the general bankruptcy claims, and drafted a list of the current status of estate claims in which dividends are estimated.

F) On February 6, 2014, K, which was the representative director of D, was convicted of violation of the Labor Standards Act, etc. on the ground that it is the representative director of D in Seoul Central District Court 2013 Man-Ma2936, and violation of the Act on Guarantee of Workers' Retirement Benefits. Since D, as the largest shareholder of the instant company, which is the subsidiary company, has overall control over all of its business activities, such as the instant company’s funds, personnel affairs, and audit, from May 201 and as a result, K is an employer who has employed 30 full-time workers, such as HHA and instructors belonging to the private teaching institute managed by the instant company, and operated the private teaching institute. The Seoul Central District Court 2014836, which was the appellate court, was dismissed on November 28, 2014, and the judgment of the first instance court became final and conclusive at that time.

G) On February 6, 2014, L, the representative director of E, was convicted of the violation of the Labor Standards Act, etc. on the ground that “L, in the case of the violation of the Labor Standards Act and the Guarantee of Workers’ Retirement Benefits Act, L, from November 1, 2011 to December 5, 2011, in the process of the merger and merger of D, was the representative director of D, and D, used the instant company to operate HHA, and was sentenced to a judgment of conviction on the payment of wages to the employees of the said private teaching institute.” The appellate court, in the case of the violation of the Labor Standards Act, 2014Do835, Seoul Central District Court Decision 2014Do835, Nov. 28, 2014; L, the final appeal of which was continued on December 4, 2014, was based on no dispute, and evidence Nos. 1, 37, 1881 and number No. 17

D. Determination

In addition to the above facts, the company of this case shall be deemed to be a business owner under the Wage Claim Guarantee Act in relation to the plaintiff, and the disposition of this case conducted on a different premise is unlawful.

1) Around December 10, 2010, the Plaintiff joined the instant company and worked at C&A, a branch of the instant company. Even according to the Defendant’s assertion, D, from May 201, operated and managed the instant company’s direct personnel, labor, and accounting management with respect to C&A, which is a branch of the instant company. As such, around December 10, 201, when the Plaintiff joined the instant company, the instant company practically operated and managed C&A, which is its branch office.

2) After joining the instant company around December 10, 2010, the Plaintiff received benefits from the instant company and C&A, its branch office, etc. The trustee in bankruptcy of the instant company deemed the Plaintiff as an employee of the instant company and set the estimated amount of dividends for overdue wages claims in preference to general bankruptcy creditors. The instant company or the trustee in bankruptcy appears to be in the position of the Plaintiff in relation to the instant company.

3) Even if K or L, which was the representative director of D or E, around May 201 or around June of the same year, was recognized as an employer and punished as a violation of the Labor Standards Act on the grounds that it actually held the business operation of the instant company from around June of the same year, this is due to the fact that the board of directors of the instant company delegated the management right of the instant company to D, and the fact that the instant company delegated management right to D cannot be extinguished or denied all of the legal status or legal rights and obligations of the instant company. Rather, K or L is merely punished due to the act as the actual representative of the instant company, and thus, it is still the employer’s status with respect to the Plaintiff who was employed in the instant company and formed a substantial labor relationship between the instant company and the instant company on December 10, 2010.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.