(영문) 대구지방법원 2016.6.21. 선고 2016구합232 판결

A. From April 6, 2013, the Plaintiff was working in the Republic of Korea in the Gyeongnam-gu, Changwon-si (hereinafter referred to as the “instant company”), and was on August 23, 2013, the labor contract relationship with the instant company was terminated, and thereafter was reinstated on November 18, 2013, and retired again on November 25, 2013.

B. On February 4, 2015, the Plaintiff filed an application with the Defendant for confirmation of the fact of the instant company’s bankruptcy, etc. on the same day. Accordingly, on February 9, 2015, the Defendant notified the Plaintiff of the confirmation of the substitute payment for KRW 196,00, which is the closure allowance from November 18, 2013 to November 24, 2013.

C. On November 20, 2015, the Central Administrative Appeals Commission filed an administrative appeal against the Plaintiff, and the Central Administrative Appeals Commission rendered a ruling to “the Defendant rendered an additional confirmation and notification of substitute payment of KRW 84,000 to the Plaintiff.” Accordingly, on December 9, 2015, the Defendant issued a notice of confirmation of substitute payment of KRW 280,000, the total amount of wages of the Plaintiff from November 18, 2013 to November 24, 2013 (hereinafter “instant disposition”). The Plaintiff did not dispute (based on recognition), without dispute, the Plaintiff’s evidence Nos. 1, 1, and 1 through 4, and the purport of the entire pleadings, as a whole.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 23, 2013, the Plaintiff was dismissed from the instant company, and is null and void as a result of dismissal without justifiable grounds. Therefore, the Plaintiff maintained its status as an employee of the instant company from August 23, 2013 to November 24, 2013 (hereinafter “instant period”). As such, the Plaintiff may receive substitute payment from the Defendant for all the unpaid wages during that period. The Defendant recognized substitute payment only for some of the periods (from November 18, 2013 to November 24, 2013). Thus, the instant disposition is unlawful.

B. Relevant statutes

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

1) The instant company, as a admission institute, established its head office in Daegu, started operation from April 20, 2013, and closed its branch offices in Marsan and Gwangju, etc., for long time, and thereafter, closed its operation until May 2014.

2) On September 24, 2013, the Plaintiff asserted that the termination of the employment relationship with the instant company on August 23, 2013 was unfair, and filed an application for unfair dismissal with the Gyeongnam Regional Labor Relations Commission, but the Gyeongnam Regional Labor Relations Commission dismissed the Plaintiff’s application on November 19, 2013 on the ground that the instant company issued an order to reinstate the Plaintiff as of November 18, 2013.

3) On September 5, 2014, the Plaintiff filed a wage claim lawsuit against D, the representative of the instant company, the Changwon District Court rendered a judgment in favor of the Plaintiff on March 26, 2015. The said judgment was served to D by means of service by public notice.

4) Meanwhile, D was prosecuted for committing an offense that “the total amount of KRW 8,803,470 for seven workers including the Plaintiff’s wage of KRW 2,709,000 from April 6, 2013 to August 22, 2013, while running the instant company,” and was sentenced to a fine of KRW 1,50,00 on October 14, 2014.

5) On November 7, 2013, the Plaintiff stated to the Defendant that the instant company was removed from the position of recommendation agency when requesting the confirmation of the insured under Article 17 of the Employment Insurance Act. D reported the Plaintiff’s separation code of the reason for departure from employment as “25 (retirement due to other corporate circumstances).” Accordingly, the Defendant confirmed that the Plaintiff was disqualified from employment insurance (e.g., date of loss: August 24, 2013) with the Plaintiff’s reason for departure from employment as “retirement due to other corporate circumstances.”

6) Meanwhile, the Plaintiff filed an application with the Defendant for job-seeking benefits with the benefit period from August 24, 2013 to June 5, 2014, and received a total of KRW 5,248,70 from the Defendant as job-seeking benefits. 【Grounds for Recognition. 【Grounds for Recognition. 【Reasons for Recognition. 【Entrys”), the Plaintiff’s entries in the evidence Nos. 5 through 9, and the purport of the entire pleadings and arguments.

D. Determination

1) Relevant legal principles

Article 7(1) of the former Wage Claim Guarantee Act (amended by Act No. 13047, Jan. 20, 2015; hereinafter the same) provides that where an employer goes bankrupt, the Minister of Employment and Labor shall pay the unpaid wages, etc. on behalf of the employer if the retired employee requests payment of the unpaid wages, etc., and according to Articles 2 subparag. 3 and 7(2)1 of the same Act, the above wages, etc. include wages under the Labor Standards Act. Meanwhile, where a dismissal disposition on a worker becomes null and void, a labor contract relation is deemed null and void, and it still remains maintained as an employee. Since a worker’s failure to provide labor during the period of dismissal is due to an employer’s cause attributable to an unfair dismissal, it is possible to seek payment of all wages that can be paid in return, and the wages that can be claimed for payment is stipulated in Article 2 of the Labor Standards Act. Therefore, even in cases where a worker’s dismissal disposition on a worker becomes null and void, it can be decided that the employee would not receive wages from the employer (see Supreme Court Decision 2017.

2) Whether the Plaintiff was subject to unfair dismissal from the instant company

Ultimately, the key issue of the instant case is whether the Plaintiff’s termination of the Plaintiff’s employment contract on August 23, 2013 constitutes an unfair dismissal and thus null and void, and whether the Plaintiff maintained his status as an employee of the instant company during the instant period.

The facts acknowledged prior to the examination, and the overall purport of the arguments as a whole, are acknowledged.

In light of the following circumstances, it is difficult to recognize that the evidence presented by the Plaintiff was unfair dismissal from the instant company on August 23, 2013, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion premised on the Plaintiff’s unfair dismissal is without merit.

① On November 19, 2013, the Gyeongnam Regional Labor Relations Commission rendered a decision to dismiss the Plaintiff’s unfair dismissal. There was no specific determination as to whether the Plaintiff was subject to unfair dismissal from the instant company.

② In light of the fact that the Plaintiff won a lawsuit against D in the civil suit, the judgment was served by public notice to D, and that D only was aware of the filing of the lawsuit in the process of fact-finding, such as bankruptcy, etc., it is difficult to readily conclude that the Plaintiff was dismissed from the instant company solely on the ground that the judgment in favor became final and conclusive.

③ Although D was sentenced to a fine due to a violation of the Labor Standards Act against the Plaintiff, etc.’s delayed payment of wages, it was only a matter of delayed payment of wages against the Plaintiff prior to the instant period.

④ At the time when the Plaintiff filed a claim against the Defendant for confirmation of the insured status, the Plaintiff voluntarily stated that the instant company retired from the position of recommending director.

⑤ The Plaintiff received job-seeking benefits from the Defendant as the benefit period from August 24, 2013 to June 5, 2014, including the instant benefit period, and the job-seeking benefits are required to be “in a situation in which the Plaintiff is unable to find a job despite his/her intent and ability to work” (Article 40(1)2 of the Employment Insurance Act). Therefore, it is difficult to logically harmonize with the application for payment of delayed payment premised on his/her employment relationship during the instant period.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.