(영문) 광주지방법원 2019.1.24. 선고 2018구합10132 판결

B. On July 22, 2016, the Plaintiff filed an application with the Defendant for recognition of bankruptcy, etc. against B, stating that the Plaintiff did not receive wages of KRW 4 million and retirement allowances of KRW 15,856,691 from “B”. On November 10, 2016, the Defendant issued a disposition of non-recognition of bankruptcy, etc. (hereinafter “instant disposition”) against the Plaintiff on the following grounds.

① On August 11, 2016, the B’s representative director C provided that he/she would resume his/her business with respect to the delayed payment of the worker’s money and valuables during the warrant performance examination, and that he/she would not have an ability to pay wages, etc., because he/she could liquidate the entire amount of the money and valuables (426,168,004 won) that he/she delayed payment to 79 workers, including the Plaintiff, as the amount transferred to D from November 1, 201 to July 20, 2016.

D. In response to the instant disposition on February 8, 2017, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission. However, the Central Administrative Appeals Commission dismissed the said request on October 17, 2017. [Grounds for recognition] The fact that there is no dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 3 (including the provisional number; hereinafter the same shall apply), and the purport of the entire pleadings.

2. The plaintiff's assertion

B was unable to pay wages, etc. in arrears or considerably difficult, and thus the instant disposition was unlawful on a different premise.

3. Relevant statutes;

It is as shown in the attached Form.

4. Facts of recognition;

A. B, a company manufacturing vessel blocks, etc., was not paid wages and retirement allowances to workers including the Plaintiff due to the increase in operating losses, but discontinued its business activities on March 2016, and dissolved around April 2016.

B. As C, the representative director of B, promised to pay the wages in arrears to the Plaintiff, etc., the Plaintiff withdrawn the petition filed with C, which was around May 2016, and submitted a letter of withdrawal of the petition to the Defendant on November 1, 2016, by setting up C’s promise. The number of workers of B around January 2016 was about 79.

D. Around November 8, 2016, B’s assets were merely KRW 2,891,138, but the wages in arrears with 79 employees reached KRW 426,168,004. Of them, the amount that the Plaintiff did not receive was KRW 19,856,691.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 4, Eul evidence 1 to 4, each of these courts

and the purport of the whole pleading.

5. Determination

A. According to Article 7 (1) 3 of the Wage Claim Guarantee Act, in cases where an employee retired without receiving wages, etc. from the employer files an application for the payment of unpaid wages, etc. with the Defendant, the Defendant is not capable of paying the unpaid wages, etc., on behalf of the said employer. Article 5 (1) of the Enforcement Decree of the same Act provides that the said employer shall pay unpaid wages, etc., if deemed that the employer is not capable of paying the unpaid wages, etc.., and the employer is unable to pay the unpaid wages, etc., upon the application of the retired employee, and the Minister of Employment and Labor recognizes that the said employer is incapable of paying the unpaid wages, etc. as the requirements for recognition of bankruptcy, etc.: (a) the number of regular employees under subparagraph 1 of Article 7 (1) is not more than 30; (b) the business is closed or discontinued under subparagraph 2 of the same Article; and (c) the said subparagraph 3 (b) provides that the payment of unpaid wages, etc. is clearly difficult for more than three months from the date of application for recognition of bankruptcy, etc.

B. B discontinued the business on or around March 2016 to not more than 300 full-time workers; the Plaintiff filed an application for recognition of bankruptcy, etc. with the Defendant on July 22, 2016; and the fact that the assets B had no capacity to pay wages, etc. in arrears with workers on or around November 2016 was found earlier. Therefore, at the time of the instant disposition, B should be deemed to have no capacity to pay wages, etc.

C. In addition, on November 9, 2016, the date of the instant disposition, at least three months from July 22, 2016, which was the date of the Plaintiff’s application for recognition of bankruptcy, etc., and thus, at the time of the instant disposition, at least three months from the date of the application for recognition of bankruptcy, etc. in realizing or recovering B’s assets at the time of the instant disposition should be deemed to have been infected. Accordingly, it constitutes cases where payment of wages, etc. is considerably difficult under Article 5(1)3 (b) of the Enforcement Decree

Ultimately, the business is closed to less than 300 full-time workers, ② the business is closed, ③ the payment of wages, etc. is not possible or is considerably difficult, so the business satisfies all the requirements for recognition of bankruptcy, etc. under Article 5(1) of the Enforcement Decree of the Wage Claim Guarantee Act.

D. The defendant asserts that since the plaintiff could not be negligent in receiving wages, etc., it cannot be deemed that the payment of overdue wages, etc. is considerably difficult.

Even if it was possible for the Plaintiff to recover wages, etc., if the Plaintiff had promptly followed the civil procedure before the repayment of other obligations, as alleged by the Defendant, the relevant statutes, such as the Wage Claim Guarantee Act, do not clearly state the circumstance that the employee was able to receive wages in arrears when taking active measures to preserve claims, etc. Accordingly, even if the employer is unable to pay wages or he/she was negligent in taking active measures to preserve claims before reaching a situation where it is substantially difficult, barring any special circumstance that may be recognized as an anti-social act that constitutes a criminal act due to a public invitation with the employer, etc., it shall not be deemed as grounds for refusing to recognize the fact of bankruptcy, etc. without permission, unless there is any evidence to deem that the Plaintiff did not recover wages, etc. with an anti-social intent, such as a public invitation with the employer, etc., the payment in arrears, etc. is significantly difficult.

E. Therefore, the instant disposition is unlawful.

6. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.