(영문) 창원지방법원 2017.9.19.선고 2016구합702 판결

On August 3, 2015, the Defendant’s notification of confirmation of substitute payment made to the Plaintiff (Appointed Party) and the appointed parties shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff (Appointed Party; hereinafter referred to as the “Plaintiff”) and the designated parties worked in C, the representative of B, and retired on December 1, 2014 (the appointed party D was September 1, 2014; and the appointed party E retired on November 1, 2014).

B. On June 29, 2015, the Plaintiff and the designated parties received the amount indicated in attached Table 1 as repayment for overdue wages, etc. from B (hereinafter “instant repayment”). On June 29, 2015, the Defendant applied for the confirmation of substitute payment to the Defendant on July 9, 2015.

D. On August 3, 2015, the Defendant notified the Plaintiff and the designated parties of the confirmation of substitute payment calculated on the premise that the said amount received from the Plaintiff and the designated parties B was paid to the Plaintiff and the designated parties for the last three months’ overdue wages and the retirement allowance obligations for the last three years’ retirement allowances (see attached Table 1).

E. On October 2, 2015, the Plaintiff and the designated parties filed an administrative appeal with the Central Administrative Appeals Commission (the Central Administrative Appeals Commission) seeking revocation of the notification of confirmation of substitute payment as calculated by the Defendant on the ground that the payment was made at the time of the instant payment. However, on April 5, 2016, the Plaintiff and the designated parties filed an administrative appeal seeking revocation of the notification of confirmation of substitute payment as calculated by the Defendant on the ground that the amount of the payment was wrong (On the other hand, the written adjudication on the evidence No. 1 stated only A as the party, but according to the statement of the evidence No. 4-1 (written application for administrative appeal), the purport of the above administrative appeal is to revoke the recognition of substitute payment made by the Defendant to the applicant, and it appears that the employee whose employment relationship was terminated due to the closure of the business and the retired workers were selected as the Plaintiff as the representative of the employee, and it is reasonable to deem that the designated parties had

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3 (including branch numbers for those with a satisfy number), the purport of the whole pleadings

2. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

3. The assertion and judgment

A. The plaintiff's assertion

Although the Plaintiff and the designated parties expressed their intent to cover some of the above money in the overdue wages debt in October 2014, the overdue wages debt in November 2014 and the retirement allowance payment debt in November 2014 to B at the time of the instant reimbursement on December 2, 2014, the Defendant’s calculation of substitute payment by deeming that the payment was made without recognizing the aforementioned designated appropriation as above, is unlawful.

B. Determination

On the other hand, it must be proved that the Plaintiff, who claimed the designation of an appropriation for performance more favorable than the legal effect conferred by the statutory appropriation for performance, was designated as an appropriation for performance at the time of the instant performance (see, e.g., Supreme Court Decision 93Da49338, Feb. 22, 1994).

However, in light of the following circumstances that can be seen by comprehensively taking account of the respective descriptions of Nos. 1-5, 7, and 11 and the purport of the entire pleadings, it is difficult to believe that the entries of Nos. 3, 4-20 through 22, 1-3, and 6 of No. 1, and the result of fact inquiry concerning the Hanyang Labor Law Firm in this court, and there is no other evidence to acknowledge the Plaintiff’s assertion. Accordingly, the Plaintiff’s assertion is without merit.

1) On March 9, 2015, B entered into an investigation by the Defendant in violation of the Labor Standards Act, etc., and the Plaintiff and the designated parties paid wages for October 2014 to the employees whose wages were in arrears, including the Plaintiff and the designated parties, and made a statement that the wages could not be divided into October, 2014, October, 2014, November, and retirement allowances, and that the designated payment would not be made (Article 1-7, 7, 8, and 1-8, No. 1-4). In light of the aforementioned statements made by B, it is difficult to view that the Plaintiff and the designated parties expressed their intent of appropriation to the payment to B at the time of the instant payment.

2) On March 25, 2015, in relation to the instant reimbursement, etc., the Certified Public Labor Attorney F asked the Ministry of Employment and Labor as to: (a) on March 25, 2015, “When the employer received the payment of unpaid money and valuables (wages and retirement allowances) after closure of the business, the employer paid the unpaid money and valuables in the course of investigating the instant case, and then paid the unpaid money and valuables,” (Article 1-1); (b) upon examining the Defendant from the Defendant, the Plaintiff and the designated parties were asked to the effect that he/she appropriated the payment at the time of the instant payment (Article 1-9, 3). In full view of these facts, the Plaintiff and the designated parties asserted that the payment was made at the time of the instant payment, but the F’s plan, based on F’s plan, the Plaintiff and the designated parties claimed that payment was made at the time of the instant payment.

3) On December 5, 2014, on which B’s signature and seal is indicated, the certificate of payment of overdue wages and retirement allowances (Evidence 1-3 of the evidence No. 1), stating that the designated appropriation is made. However, although F stated the contents of the case in the questionnaire at the time of questioning with the Ministry of Employment and Labor at the time of questioning, it stated that F prepared documents to the effect that the business owner would make payment after the payment of money and other valuables (No. 1-3 of the evidence No. 1-1), and B stated that B signed the above certificate of confirmation around December 15, 2014 (No. 7,8 of the evidence No. 1-1), which was after the Defendant paid the money to the Plaintiff and the selector in the course of the investigation (No. 7,8 of the evidence No. 1), and G, which was the accounting of C, was paid back to the date of the instant payment, and that it was difficult to prepare or present the above certificate No. 10-1 of the evidence No.6.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, judges and assistant judges;

Judges Park Jae-young

Judge Park Jong-sung

Attached Form

A person shall be appointed.

참조조문

-근로기준법

참조판례

-대법원 1994. 2. 22. 선고 93다49338 판결

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