The case holding that a director or an auditor is a worker under the Labor Standards Act, in case where he was registered as a director or auditor of a company, or even if he was engaged in the duties of director or auditor, and provided certain labor to the company and received certain remuneration in return, in addition to the delegated duties.

The case holding that even if a director or auditor was registered as a director or auditor of a company in the form of a company, or even if he had performed the duties of director or auditor, if he provided certain labor to the company and received certain remuneration in return, such director or auditor shall be a worker under the Labor Standards Act.

[1] Article 14 of the Labor Standards Act

Supreme Court Decision 96Da33037, 33044 Decided October 24, 1997 (Gong1997Ha, 3577) Supreme Court Decision 97Da44393 Decided December 23, 1997

Plaintiff 1 and three others (Attorney Kim Na-tae, Counsel for the plaintiff-appellant)

Gwangju Bank (Attorney Han-soo, Counsel for defendant-appellant)

1. Of the distribution schedule prepared by the same court on February 9, 1999 with respect to the case of auction of real estate (No. 98 Taju District Court) No. 17143, the amount of dividends to the Gwangju Bank shall be changed to KRW 214,88,244,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or there is no conflict between Gap evidence 1, Gap evidence 2-1, 2-3, Eul evidence 4, Eul evidence 1-1, Eul evidence 2-2, Eul evidence 3-1, Eul evidence 3-1, 2-2, Eul evidence 4-1, and Eul evidence 4-2, and there is no counter-proof.

A. On June 21, 1994, the Defendant: (a) on the north-gu Seoul Special Metropolitan City ( Address omitted); (b) 674m2 and 2m394m2 and 138.94m2 and 194m2 and 2m394m2 and 194m2 and 194m2 in the apartment cafeteria, a cafeteria, a private-mortgage, and the debtor, a company, completed a first priority mortgage registration with the maximum debt amount of KRW 600,000 with the Defendant and the debtor as the company; and (c) on January 20, 1995, the Defendant again leased the Defendant, the debtor, the non-party company, the maximum debt amount of KRW 150,000,000 to the non-party company on the aggregate of KRW 70,000 and KRW 700,000 to the above company.

B. After that, the non-party company had defaulted on February 7, 1998, and the defendant, as the creditor, filed an application for voluntary auction of the real estate of this case, which is a security, with the Gwangju District Court, No. 98 Doz. 17143 of the same year, with the claim amounting to KRW 477,662,609, and overdue interest 113,48,621, the principal of the non-party company's non-party company's outstanding debt, and the procedure of voluntary auction was commenced on March 23 of the same year, and the real estate of this case, which is the security, was awarded to non-party 1 on January 8

C.On the other hand, 20 workers of the non-party company, including the plaintiffs, were unable to receive wages and retirement allowances from the non-party company due to the above default, and thus the non-party company was awarded winning the lawsuit against the non-party company by filing a claim for wages, etc. with the Gwangju District Court around 1998. In the above judgment, the non-party company, which was the defendant, was liable to pay to the plaintiff 1 24,571,32 won, gold 11,835,434 won, gold 24,545,386 won, gold 21,403,288 won, and damages for delay at the rate of 25 percent per annum from August 5, 1998 to the date of full payment. The above judgment became final and conclusive.

(d)The plaintiff and the non-party 2 and the non-party 15 who are non-party 2 as the designated parties, filed a report on the rights to the non-party 2 and an application for demand for distribution with the court of auction on the total amount of 158,865,19 won (the non-party 2 and non-party 15 et al. from December 1997 to February 2, 1998 plus the total of 105,609,689 won of the wages and retirement allowances for three months from December 197 to February 1998 of the plaintiff, as well as the total of 53,25,430 won of the wages and retirement allowances for three months from February 197 to February 199.

(e)The defendant, as the applicant for auction, has submitted to the court of auction a statement of claims seeking distributions of principal amounting to KRW 477,662,609 and interest amounting to KRW 113,48,621;

F. The auction court paid dividends of KRW 320,49,97,93, the remainder after deducting the enforcement cost of KRW 4,144,740,00 from the amount of 324,642,673 on February 9, 1999. The auction court did not first distribute the remainder of KRW 320,49,689,689 on the ground that only the non-party 2 and the non-party 15, except the plaintiffs, were amended by Act No. 5473 on December 24, 1997, by Act No. 5510 on February 20, 1998; hereinafter the same shall apply) to the defendant, who was a mortgagee, for three months from December 12, 1997 to February 2, 198, the Plaintiffs did not first distribute the remainder of the retirement allowances to the non-party 2 and the non-party 4,609,689 on the ground that the non-party 2 and the plaintiffs were their directors were paid dividends to 28.

G. On the date of distribution, the Plaintiffs raised an objection against this case by asserting that the amount of KRW 53,255,430, out of KRW 214,882,244, which is to be distributed to the Defendant on the date of distribution, is the total sum of wages and retirement allowances to be distributed to the Plaintiffs who are workers under the Labor Standards Act, from December 12, 1997 to February 1, 198, and thereafter filed a lawsuit of demurrer against the distribution of this case.

2. Determination of the parties' arguments

A. The plaintiff and the defendant's assertion

The plaintiffs asserted that the auction price of real estate in this case, which is an employee of the non-party company, should be paid in preference to the defendant, who is the first and second priority collective security right, under Article 37 (2) 1 and 2 of the Labor Standards Act, and Article 2 (2) of the Addenda of the Labor Standards Act, for the last three months from December 1997 to February 198, the amount of wages and retirement allowances (the total amount of retirement allowances from March 29, 1989 to December 23, 197, and the last three years from February 24, 1997 to February 28, 1998), is unfair since the court of auction did not merely because the plaintiffs were registered as directors or auditors of the non-party company for a certain period of time, and therefore, the defendant asserted that the above auction court's act of paying dividends to the non-party 1 or 2 as a shareholder of the non-party 1 or 4 of the Labor Standards Act, as well as the prescribed amount of the plaintiff 1 or 2.

(b) Markets:

Therefore, the following facts may be acknowledged in full view of the following facts in light of Gap evidence 5-1, Eul evidence 5-2, Eul evidence 6-1 through 14, Eul evidence 7-1 through 7, Eul evidence 6-1 through 6-4, Eul evidence 6-1 to Eul evidence 6-4, non-party 3's witness's partial testimony, and the fact-finding results against the chief executive officer of the National Pension Management Corporation of this Court, and Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 3-3, Eul evidence 4-4, Eul evidence 5-5, and some testimony of non-party 3 of the witness evidence are insufficient to reverse the above facts, and there is no counter-proof otherwise.

(1) On August 24, 1992, the plaintiff 1 entered the non-party company and was in charge of the technical department work until he retires on February 28, 1998. The plaintiff 2 entered the non-party company on January 27, 1997 and was in charge of the design, manufacture, installation, and trial operation related to the electric control tower. The plaintiff 2 was in charge of the production department work until he retires on February 28, 1998 and operated the work of manufacturing department work at the factory site. The plaintiff 3 was in charge of the work of manufacturing, installation, and trial operation at the factory site. On January 27, 1991, the plaintiff 3 was in charge of the non-party company from around January 1, 1995 to around August 1, 1997, and from around January 1, 1997, the manager of the management division was in charge of the work of manufacturing staff, machinery operation, etc. to the non-party company within the machinery design section 19.

(2) On December 21, 1990, the non-party 3, the representative director of which was the non-party 3, was 20 or more employees, who were established with his relative relatives and friendships as shareholders for the purpose of designing, manufacturing, selling industrial machinery. The above non-party 3 was the auditor from July 21, 1994 to January 31, 1996; the auditor from July 22, 1996 to January 16, 197; the director from July 20, 1997 to the retirement; the director from January 24, 198 to the director; the plaintiff 2 from January 16, 197 to the director; the plaintiff 3 from January 16, 197 to the director; and the plaintiff 3 from January 16, 1997 to the plaintiff 1 was actually listed in the corporate register for the plaintiff 1, 194 through July 14, 1997.

In light of the above facts, the plaintiffs were registered as directors or auditors of the non-party company in form, and even if the non-party company actually performed the duties of directors or auditors of the non-party company, it is recognized that the non-party company provided a certain amount of labor and received a certain amount of remuneration in return for the provision of labor in the non-party company as well as the delegated duties, so the plaintiffs are workers subject to the Labor Standards Act (see, e.g., Supreme Court Decisions 96Da3037, 33044, Oct. 24, 1997; 97Da44393, Dec. 23, 1997; 97Da44393, Dec. 23, 1997). Accordingly, it is unfair to exclude the plaintiffs from the total amount of wages of the last three months months for the non-party company after March 29, 1989; 3.5.25.3 years after 1957.

3. Conclusion

Thus, the court of auction shall change the dividend amount of KRW 214,88,244 to KRW 161,632,814 (gold KRW 214,88,244-gold KRW 53,255,430) from among the dividend table prepared as above by the court of auction, and shall correct that the amount of the total sum of the unpaid pay and retirement pay set forth in the attached list is distributed to the plaintiffs in the first order.

Judges Hwang Jong-Un (Presiding Judge)