Korea Deposit Insurance Corporation (Law Firm National Law Firm, Attorney Lee Jong-won, Counsel for defendant-appellant)

Defendant 1 and six others (Law Firm Inology, Attorneys Yang Sung-hoon et al., Counsel for the defendant-appellant)

December 5, 2014

Suwon District Court Decision 2014Da13167 Decided September 2, 2014

1. Revocation of a judgment of the first instance;

2. Of the dividend table prepared by the above court on March 25, 2014, the amount of KRW 9,195,90 to Defendant 1 among the dividend table prepared by the court on March 25, 2014, KRW 15,847,230 to Defendant 2; KRW 8,668,690 to Defendant 3; KRW 13,93,100 to Defendant 4; KRW 6,413,20 to Defendant 5; KRW 6,413,20 to Defendant 5; KRW 9,252,90 to Defendant 6; KRW 15,674,90 to Defendant 7; KRW 15,674,90 to the amount of dividends to the Plaintiff; KRW 2,68,690 to the amount of dividends to Defendant 3; KRW 8,690 to the Plaintiff; KRW 2,371,2837; KRW 371,208; KRW 375,275,207.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Facts of recognition;

A. The Defendants are employees in Gyeyangyang, Co., Ltd., who worked for the same period as the membership date and the date of withdrawal on the attached sheet, and the Plaintiff is a creditor who received dividends to the lower court than the Defendants in the case of voluntary auction on real estate in the 2011 another 37165 real estate as the right to collateral security against Nonparty Co., Ltd. as a creditor.

B. On January 18, 2005, the Choungung Bank Co., Ltd. (hereinafter “New Bank”) established a right to collateral security, the maximum debt amount of which is KRW 1.25 million on the real estate owned by Taeyangyang Co., Ltd., (hereinafter “Seoul High Bank”), which was received on January 18, 2005, with the Government Registry of the District Court No. 6625, Jan. 18, 2005. On September 201, 201, it filed an application for voluntary commencement of auction of real estate with the Government District Court No. 2011, Mar. 37165, 201. Upon the said application, the said court rendered a decision to commence voluntary auction of real estate on September 28, 2011.

C. After that, on January 13, 2012, the new bank transferred the right to collateral security to the new bank in New Savings Co., Ltd. on the ground of a final claim transfer as of December 26, 2011.

D. Meanwhile, the Defendants, while serving as employees of the Gyeyangyang Co., Ltd., failed to receive benefits, retirement allowances, etc. from the Gyeyangyang Co., Ltd., on June 22, 2011, set up a collateral security right of KRW 267,631,450 (hereinafter “mortgage”) with respect to real estate owned by the Gyeyangyang Co., Ltd. on June 22, 201.

E. The Defendants submitted a claim statement as a mortgagee on November 3, 201, before December 19, 201, which was prior to the completion date of the demand for distribution, in the said real estate auction procedure, only before December 19, 2011, and filed a report on the right to wage claims and an application for the demand for distribution on December 14, 201.

F. After that, on March 25, 2014, the auction court prepared a distribution schedule with the contents of distributing money as stated in the order with the Defendants on the date of distribution of the above auction procedure. However, the Plaintiff stated an objection against the total amount of dividends to the Defendants, and filed a lawsuit of demurrer against distribution on April 1, 2014, the period between seven days and seven days thereafter.

2. The assertion and judgment

A. Summary of the plaintiff's assertion

The Defendants are not wage creditors, but merely loan creditors, and even if they are wage creditors, they cannot exercise the right to preferential repayment, and even if they are wages creditors, they cannot exercise the right to demand a distribution by the deadline for requesting a distribution. Even if the Defendants lawful demand a distribution as wage creditors, the wages of the last three months were paid and extinguished as of the deadline for requesting a distribution, and as they were not in the state of retirement at the time, there was no claim for a retirement allowance claim. Therefore, in the distribution schedule prepared by the aforementioned court as of March 25, 201 in relation to the case of voluntary auction of real estate (No. 2011 another district court) and prepared as of March 25, 2014, the Defendants’ dividends against the Defendants are unfair, and thus, all of them should be corrected to

B. Determination

1) Whether the Defendants are wages creditors

According to the evidence evidence Nos. 5 and Eul evidence Nos. 1 and 2, the defendants and So-called "right to collateral security (hereinafter "the right to collateral security") were written with a loan deposit amount of KRW 267,631,450 up to that time against the defendants of So-young Co., Ltd. on June 21, 201. The defendants cannot be deemed to have established the right to collateral security (hereinafter "the right to collateral security") with a maximum claim amount of KRW 267,631,450 on June 22, 201, and there is no other evidence that the defendants continued to have established the right to collateral security and the right to collateral security (including several numbers) after the above evidence and evidence Nos. 3 through 5 (including several numbers). Thus, the defendants cannot be deemed to have established the right to collateral security (which is the right to collateral security) and the right to collateral security (which is the right to collateral security) and the right to collateral security (which is the right to collateral security).

2) Whether there was a legitimate demand for distribution

Even though a wage creditor having a preferential right to demand a distribution under the Labor Standards Act is a wage creditor who has a preferential right to demand a distribution in the auction procedure, he/she may receive a preferential distribution only by the completion date of the demand for distribution in the auction procedure. However, even if a person having a real estate provisional seizure right prior to the commencement of the auction procedure did not demand a distribution, even if he/she did not separately submit a claim for distribution, he/she shall not be excluded from the distribution. Thus, in balancing the procedural request required to ensure the stability of civil execution procedure and the substantive legal request to protect workers' wage claims, where a wage creditor who has a preferential right to demand a distribution has seized an immovable property prior to the commencement of the auction procedure, even if he/she did not vindicate that it is a preferential right to demand a distribution prior to the commencement of the auction procedure, he/she may receive a preferential distribution if he/she proves that it is a wage claim having a preferential right to demand a distribution prior to the commencement of the auction procedure (Supreme Court Decision 2002Da52312 Decided July 22, 2004).

In the instant case, the Defendants, as wage creditors, established the right to collateral security on real estate before the commencement of the auction procedure, and even if the Defendants did not vindicate that they are the right to collateral security prior to the completion date of the demand for distribution, it can be acknowledged that they clearly explained that they are the right to preferential payment prior to the confirmation of the distribution schedule. Thus, the demand for distribution made by the Defendants as wage creditors is lawful, and the Plaintiff’s assertion on this different premise is without merit.

3) Existence of wage claims and retirement allowance claims recognized as the top priority repayment

A) First, whether the wage claims recognized as the right to preferential repayment against the Defendants are recognized or not, the scope of wage claims protected by the right to preferential repayment refers to the wages for the last three months that have not been received from the employer, regardless of the time of retirement (Supreme Court Decision 97Da32178 delivered on November 14, 1997). In this context, when the last three-month wage is the starting point, the last starting point should be the starting point for the labor relationship of the workers who had already been terminated before the compulsory execution or demand for distribution of a voluntary auction, and the starting point for the demand for distribution should be the starting point for the workers whose labor relations have not been terminated at the time of demand for distribution, respectively. In the case of workers whose labor relations have not been terminated at the time of demand for distribution, the starting point of

In addition, in case where a wage creditor, who has a preferential right to payment, with respect to the real estate subject to the auction prior to the commencement of the auction procedure, files a report on the right and demand for distribution as a wage creditor only before the distribution schedule becomes final and conclusive after the completion date of the demand for distribution, even if he is the wage creditor having a preferential right to payment under the Labor Standards Act, he shall make a demand for distribution in the auction procedure by the completion date of the demand for distribution, and in principle, he shall be entitled to the preferential distribution only by the time prior to the completion date of the demand for distribution. In light of the fact that the report on the right and the demand for distribution after the completion date of the demand for distribution after the completion date of the demand for distribution is merely proved that he is a wage claim with a preferential right to payment secured by the right

With respect to the instant case, the Defendants submitted a claim statement as a mortgagee on November 3, 201, which was before December 19, 201, which was before the completion date of the demand for distribution in the said real estate auction procedure. On December 14, 2012, the fact that the Defendants reported a right as a wage creditor and applied for a demand for distribution on December 14, 2012 is as seen earlier. According to the evidence No. 4 and evidence No. 5-1 through No. 5-11 of the Labor Standards Act, the Defendants can be recognized that the business owner paid all wages to the Defendants prior to the completion date of the demand for distribution. Accordingly, the Defendants’ claim for wages for the last three months based on the completion date of the request for distribution by the Defendants had already been extinguished. Although the business owner, which was a stock company, did not pay three-month wage claims to the Defendants as of the retirement date of the Defendants, the aforementioned wage claim cannot be deemed as a wage claim having the top priority right provided for in Article 38(2)1 of the Labor Standards Act.

Therefore, the plaintiff's above assertion is justified.

B) Next, as seen earlier, whether there exists a retirement allowance claim that is recognized as the top priority repayment right against the Defendants, and the Defendants continued to engage in a labor relationship with Yangyang Co., Ltd. by the date of completion of the demand for distribution, and each withdrawal on the date indicated in the column for the withdrawal date of the attached Table for demand for distribution. As such, there was no retirement allowance claim that is recognized as the top priority repayment right to the Defendants, and thus, there is

Therefore, the plaintiff's assertion on this part is justified.

4) Sub-committee

Therefore, inasmuch as the Defendants’ claim for wages is not a claim that is the top priority repayment right under the Labor Standards Act, and the retirement allowance claim did not occur, among the distribution schedule prepared by the above court on March 25, 2014, the amount of KRW 9,195,90 against Defendant 1 shall be KRW 15,847,230 among the distribution schedule prepared by the above court on March 25, 2014, KRW 8,68,690 against Defendant 2 shall be KRW 13,93,100 against Defendant 4 shall be KRW 13,93,200, KRW 6,413,200 against Defendant 5, KRW 9,252,90 against Defendant 6 shall be the dividend amount, KRW 15,847,230 against Defendant 2, and KRW 15,68,297, KRW 397,297,00 against Defendant 4 shall be adjusted to KRW 13,937,297,2074,207

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance, which has different conclusions, is unfair, so it is revoked, and it is decided as ordered by the above court to correct the distribution schedule prepared on March 25, 201, which was executed by the above court as to the auction case of real estate rent No. 2011 another district court, 37165.

[Attachment]

Judges Cho Young-jin (Presiding Judge) Professor Young-Jap Kim Jong-man