(영문) 부산지방법원 2014.9.4. 선고 2014구합1407 판결

A. On September 17, 2012, the Plaintiffs, an employee of the B Hospital (hereinafter referred to as the “instant hospital”), which was operated by the A Medical Foundation, retired from the instant hospital as of September 1, 2012, and applied for confirmation of the payment of substitute payments to the Defendant.

B. Accordingly, on September 21, 2012, the Defendant notified the Plaintiffs of the confirmation of substitute payment pursuant to Article 7 of the Wage Claim Guarantee Act and Article 10 of the Enforcement Decree of the same Act. The details are as indicated in attached Table 2.

C. On September 25, 2012, based on the notification of confirmation of substitute payment received from the Defendant, the Plaintiffs requested the Korea Workers’ Compensation and Welfare Service to pay substitute payment corresponding to the details of substitute payment stated in attached Table 2. On September 27, 2012, the Plaintiffs received KRW 183,33,180 in total from the Korea Workers’ Compensation and Welfare Service.

D. However, on April 18, 2013, the Defendant issued a notice of cancellation of the substitute payment (hereinafter “instant disposition”) to the Plaintiffs on the following grounds.

【Reasons for Revocation 【A’s Workers of the Medical Foundation B Hospital”, even though the Plaintiffs, who were the employees of the Medical Foundation B, received pre-paid wages of September 2012 and continued to work at the same hospital after September 2012, 2012, submitted on September 17, 2012 and received a notice of confirmation of substitute payment on September 21, 2012, and received a notice of confirmation of substitute payment, and subsequently received the substitute payment amounting to KRW 183,33,180.

【In the absence of dispute over the grounds for recognition, Gap evidence 1, Eul evidence 2, Eul evidence 1-1, 2, 3, Eul evidence 2-1 and 2-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

C. The president D of the instant hospital and its affiliated medical doctors E provided some subsidies to the human resources and employees of the instant hospital for the purpose of leasing and operating the instant hospital. The Plaintiffs did not directly receive the payment from the manager of the instant hospital. The Plaintiffs agreed to retire from the instant hospital on September 1, 2012 with the manager F who was in the position of the representative of the instant hospital. However, in light of the fact that continuing to work at the instant hospital is expected to appear at the instant hospital and maintaining the employment relationship with the instant hospital externally, it is reasonable to deem that the employment relationship with the Plaintiffs and the instant hospital was severed after September 1, 2012. Accordingly, the Plaintiffs’ application for substitute payment was filed on September 1, 2012 to verify the retirement date of the instant hospital and the revocation of the instant substitute payment notification was made on the ground that the instant substitute payment was lawful.

B. Relevant statutes

Attached Form 3 is as shown in the relevant statutes.

C. Facts of recognition

1) On August 8, 2012, the instant hospital received a decision to commence rehabilitation procedures from the Busan District Court (2012 Gohap11), and at the time, the instant hospital was appointed an attorney-at-law as a custodian. Meanwhile, the F was appointed as an agent from July 27, 2012 due to a provisional disposition to suspend the direct enforcement of the A Medical Foundation’s right to vote directors, which is the operating foundation of the instant hospital.

2) From July 27, 2012 to October 5, 2012, if the Plaintiff G, the planning deputy head of the instant hospital, brought about the documents related to the receipt and receipt and disbursement of the instant hospital to F’s office, F approved the instant hospital, and directly visited the instant hospital one to two occasions a week to carry out hospital management duties as an employer.

3) Meanwhile, the Plaintiffs expressed their intent to retire from office from the end of July 2012 due to the aggravation of the finance of the instant hospital, etc., and subsequently, expected that the decision on commencing rehabilitation procedures for the instant hospital was made, medical care benefits were normally paid, and that they would normally be compensated for wages in arrears until the police officer during August 2012. However, notwithstanding the decision on commencing rehabilitation procedures for the instant hospital, the Plaintiffs were unable to receive wages in arrears due to the offset of other obligations of the A Medical Foundation and the medical care benefits of the National Health Insurance Corporation against other obligations of the instant hospital, unlike expected, and the Plaintiffs were to apply for substitute payments until August 31, 2012.

4) However, on August 26, 2012, D, the operator of C Hospital, requested that the Plaintiffs continue to provide the instant hospital services by paying approximately KRW 86 million, including the amount of wages on September 26, 2012, the Plaintiffs continued to work for the instant hospital and continued to work as before the instant hospital. On September 2012, E paid a part of the wage on October 2012, and continued to work for the instant hospital even around October 2012. D, etc. paid a one-month wage to the employees of the instant hospital, with the idea that it would prevent the infringement of the medical rights of patients in the instant hospital due to the dissolution of the instant hospital, because D, etc., paid a one-month wage to the employees of the instant hospital, together with the idea that it would be prevented from infringing the medical rights of patients in the instant hospital by leasing and operating the instant hospital thereafter.

5) However, even after the rehabilitation procedure for the instant hospital was abolished on September 20, 2012, the lease was not permitted for the instant hospital. Ultimately, F transferred all remaining patients to another hospital on October 5, 2012, and the Plaintiffs, workers, were dissolved.

【Evidences No. 2, No. 4 through No. 7 of the Evidence No. 7 and the purport of the whole pleadings for recognition

D. Determination

1) Article 7 of the Wage Claim Guarantee Act and Article 4 of the Enforcement Decree of the same Act provide that the Minister of Employment and Labor shall, in cases where a business owner declares bankruptcy under the Debtor Rehabilitation and Bankruptcy Act, decides to commence rehabilitation procedures, and where a retired worker requests the payment of wages, etc. that have not been paid to him/her on behalf of the business owner, the employer shall pay the unpaid payment, etc. on behalf of the business owner. Article 10 of the Enforcement Decree of the same Act provides that a person who requests a substitute payment shall obtain confirmation from the Minister of Employment and Labor as to the date of application for adjudication of bankruptcy, etc., and the date of retirement. Meanwhile, Article 14(1) of the Wage Claim Guarantee Act provides that a person who intends to receive a substitute payment by fraudulent or other illegal means may request a person who intends to

2) On September 1, 2012, the Plaintiffs received a notice of confirmation of substitute payment by stating the date of retirement. The key issue of the instant case is whether the employment relationship between the instant hospital and the Plaintiffs was actually terminated on September 1, 2012, namely, whether the employment relationship between the Plaintiffs was actually terminated as of September 1, 2012 when the Plaintiffs applied for substitute payment. We examine this issue.

(3) The above facts and the purport of the argument are as follows: ① the Plaintiffs’ failure to receive wages on June 2012, 201 were due to the Plaintiff’s transfer of the right to receive medical benefits from the National Health Insurance Corporation (hereinafter “Korea Health Insurance Corporation”). The Plaintiff’s assertion that it was difficult for the Plaintiff to receive wages on July 2012, 201 and the Plaintiff’s temporary measure to return the medical benefits that the Plaintiff received from the Korea Health Insurance Corporation (hereinafter “Korea Health Insurance Corporation”) had no choice but to receive for 2 months after the closure of the instant hospital’s business. The Plaintiff’s assertion that it was difficult for the Plaintiff to receive wages on the premise that it could not receive wages on the premise that the Plaintiff could not receive wages on the premise that there was no need to receive wages on the premise that the Plaintiff could not receive wages on the premise that the Plaintiff had no choice but to receive wages on the premise that the Plaintiff had no choice but to receive wages on the premise that the Plaintiff had no choice but to receive wages on the part of the Korea Health Insurance Corporation.

3) Therefore, the instant disposition on a different premise is unlawful.

3. Conclusion

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