(영문) 서울행정법원 2015.10.29. 선고 2015구합63180 판결

1. The Defendant’s disposition of non-recognition of facts, such as bankruptcy, notified the Plaintiff on March 24, 2015, is revoked. 2. The litigation cost is assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff is an employee who retired on September 1, 2013 while serving in the so-called “instant company” (hereinafter referred to as “instant company”).

B. On December 4, 2013, the Plaintiff asserted that the instant company did not receive wages and retirement allowances from the company, and filed an application for confirmation of the delayed payment amounting to KRW 9,875,520,00 in total, wages and retirement allowances from the Defendant. On August 28, 2014, the Plaintiff filed an application for recognition of bankruptcy, etc. with the Defendant on December 4, 2013.

C. On March 24, 2015, the Defendant rendered a disposition of non-recognition of bankruptcy, etc. (hereinafter “instant disposition”) pursuant to Article 5(1) of the Enforcement Decree of the Wage Claim Guarantee Act on the ground that “the Plaintiff does not confirm the type, realization and possibility of the assets owned by the instant company, and the settlement amount of lease deposit, etc., so it does not make a determination as to whether it is substantially difficult for the business owner to pay the overdue money and valuables to the employees.”

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

The instant company was a business entity whose main business is to operate and make a promise on behalf of its customers for the commission of camping and making a promise. It returned all camping teams entrusted due to business deterioration and closed a reservation site. The instant company’s assets do not at all except for 20 camping teams in a lawsuit pending with the Maging Camp and the instant company takes considerable time and expenses to renounce and realize the ownership of the said assets. The instant company’s lease deposit amounting to 5 million won, which is 2.5 million won, remaining after being offset against monthly rent, is in arrears at the National Health Insurance Corporation. The instant company constitutes a case where payment of wages, etc. is considerably difficult under Article 5(1)3 (b) or (c) of the Enforcement Decree of the Wage Claim Guarantee Act. Comprehensively taking account of the aforementioned circumstances, the instant company satisfies the requirements for recognition of bankruptcy, etc. under Article 5(1)3 of the Enforcement Decree of the Act on the Guarantee of Wage Claims. The instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

1) The instant company operated the Hato Camp doping consulting, camping club sales, and Hato Camp doping brokerage business, but due to the increase in operating losses, it was dealt with ex officio business closure from Seoul Sejong Sejong District Court on September 28, 2013. (2) On February 3, 2015, the Defendant confirmed that the instant company visited the location of the instant company’s place of business, and confirmed that, as a result, the instant company did not carry out any business any longer at the said location, it was found that: (a) the instant company was deducted from the smuggling monthly rent; (b) the deposit was returned to return KRW 20,90,267; and (c) the company was not doing any business any longer at the said location.

3) The number of regular employees of the instant company was 12.3 on an average, but all workers retired on September 12, 2013.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 2 and 3, purport of the whole pleadings

D. Determination

1) According to Article 7 (1) 3 of the Wage Claim Guarantee Act, where a retired employee who did not receive wages, etc. from the employer applies for the payment of unpaid wages, etc., the defendant shall pay the unpaid wages, etc. on behalf of the above employer (hereinafter referred to as "recognition of bankruptcy, etc."). Article 5 (1) of the Enforcement Decree of the same Act provides that where a retired employee applies for wages, etc. from the employer without receiving wages, etc. from the employer and the Minister of Employment and Labor recognizes that the employer has no ability to pay unpaid wages, etc. as the requirements for recognition of bankruptcy, etc. are prescribed as the requirements for recognition of bankruptcy, etc., and each subparagraph provides that the number of regular employees is less than 30 persons (title 1), "where the business is discontinued or discontinued, or where it is considerably difficult to pay the unpaid wages, etc. (title 2), and subparagraph 3 (b) of the same Article provides that the payment of unpaid wages, etc. shall be made for more than three months from the date of bankruptcy, etc.

2) In the instant case, the instant company discontinued its business around September 2013 to less than 30 full-time workers, and the Plaintiff filed an application for recognition of bankruptcy, etc. against the instant company on August 28, 2014 to the Defendant on the ground that the Plaintiff filed an application for recognition of bankruptcy, etc. with the Defendant on August 28, 2014, as seen earlier, and according to the purport of the entire pleadings, the instant company did not realize or recover its property until the date of closing argument

According to this, at least three months from the date of application for recognition of bankruptcy, etc. in order to liquidate or recover the assets of the business owner of the instant company at the time of March 24, 2015, which is the date of the instant disposition, shall be deemed to have been infected by the instant company pursuant to Article 5(1)3 (b) of the Enforcement Decree of the

Therefore, it is reasonable to view that the company of this case satisfies all the requirements for recognition of bankruptcy, etc. under the subparagraphs of Article 5 (1) of the Enforcement Decree of the Wage Claim Guarantee Act because it is substantially difficult to pay wages, etc.

The instant disposition is unlawful on a different premise.

3. Conclusion

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