Korea Labor Welfare Corporation (Attorneys Im Chang-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Clinical-soo, Counsel for defendant-appellant)

April 14, 2005

1. Revocation of the transfer contract concluded on July 23, 2003 between the defendant and the non-party dong Transport Co., Ltd. with respect to buses listed in the separate sheet

2. The defendant shall pay to the plaintiff 1,032,00,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. The plaintiff's substitute payment

(1) The plaintiff is a juristic person established under Article 13 of the Industrial Accident Compensation Insurance Act, and where an employee retired under Articles 6, 7, and 23 of the Wage Claim Guarantee Act has not been paid wages, etc. due to the employer's bankruptcy or other causes as determined by the Presidential Decree, the plaintiff paid unpaid wages, etc. to the employer on behalf of the employer, and is entrusted by the Minister of Labor to subrogate the right to claim unpaid wages, etc. to the employer within the scope of the amount paid.

(2) On December 11, 2002, Dongnam Transport Co., Ltd. (hereinafter “Dongnam Transport”) was running a bus transport business and suspended bus operation on December 11, 2002. On May 15, 2003, the license for urban bus passenger transport services was revoked and actually discontinued its business operation. At the time, 220 workers, including Nonparty 3, etc. were not paid wages and retirement allowances equivalent to KRW 2,568,807,479 for 220 workers.

(3) On February 26, 2003, the defendant et al., who is an employee of the male traffic, filed an application for recognition of bankruptcy, etc. with the Seoul Western District Labor Office. On June 2, 2003, the defendant et al. received notification of non-recognition of bankruptcy, etc., and filed a lawsuit seeking revocation of non-recognition of bankruptcy, etc. with the Seoul Administrative Court on June 2, 2003, and withdrawn it on July 25 of the same year. The defendant et al. again filed an application for recognition of bankruptcy, etc. with the same labor office on July 28 of the same year, and the same labor office on September 30 of the same year recognized bankruptcy, etc.

(4) On November 28, 2003, the Plaintiff paid a substitute payment of KRW 1,141,173,910 in total as part of the wages for the last three months and the unpaid retirement allowances for the last three years under Articles 6, 7, and 23 of the Wage Claim Guarantee Act, and Article 24 of the Enforcement Decree of the same Act (hereinafter “instant substitute payment”).

B. On July 23, 2003, Dongnam Transport transferred the purchase price to the Defendant as payment in kind for the bus listed in the separate sheet (hereinafter “instant transfer contract”) (hereinafter “instant transfer contract”), and on July 25, 2003, the Defendant sold the said bus at KRW 1,032,00,000 to the future car sales company (hereinafter “ future car”).

(c) Distribution of the purchase price;

(1) On July 23, 2003, the Defendant asserted a loan for consumption for KRW 490,854,861 as of September 2002 at the time of payment of KRW 300 million out of the above purchase price, the first quarter, the second quarter, and the second quarter bonuses of KRW 490,861, and received the Defendant’s payment of the loan from the Seoul Western District Court Decision 2003Da165045, 170726, 170733, 170740, and 17057 as a settlement against Nonparty 1 who filed a lawsuit claiming the return of the loan (However, this part of the loan was paid to Nonparty 1 who was the party to the agreement, not Nonparty 1 (Evidence 7). The Defendant collected the loan from Nonparty 4, the creditor of the Gangnam traffic, to the Seoul Western District Court Decision 2003Da64840, May 13, 200).

(2) In addition, the Defendant, at the time of July 24, 2003, paid KRW 500 million out of the price for the instant bus to Hyundai Automobile Co., Ltd. (hereinafter referred to as Hyundai Automobile Co., Ltd.), which was undergoing an auction procedure for the instant bus, at Seoul Western District Court Decision 2002ta, around 17728 and 17735, in return for withdrawal of the compulsory auction procedure.

(3) On the other hand, on August 18 of the same year, the defendant himself appropriated 60 million won out of the purchase price as a debt repayment for his own south traffic.

D. However, on December 11, 2002, Dongnam Transportation suspended the bus operation and was in de facto discontinued due to the suspension of operation of the bus. In addition to the wages in arrears described in paragraph (2) of the above paragraph (2) of the above paragraph, it reached KRW 10,226,962,815 for employees, on the other hand, there was no specific property (On the other hand, Dongnam Transportation had a claim of KRW 556,098,178 against the Seoul Metropolitan Government Bus Transport Business Association, but it was distributed to employees on August 12, 2003 as part of the wages in arrears).

[Based on the basis of recognition] A without dispute, Gap evidence 1 through 7, 9 (the same shall apply to evidence 14), 10, 12, 15-1 through 23-2, 27-1 through 27-4, Eul evidence 1 through 3, 8-1, 2 and 9-14, 14-1 through 3, 18-1, 2, 20-1 (the same shall apply to evidence 3), 26-1, 3 (the same shall apply to evidence 18-1), 4 (the same shall apply to evidence 18-2), 13 through 16, 18, 27-2, 3 (the same shall apply to the evidence 2, 20-1), 3-2, 4 (the same shall apply to the evidence 18-2, 20-16, 19 (the same shall apply to the testimony and evidence 27-2, 30-3 (the evidence and evidence 27).

2. Whether the person has a preserved claim;

A. According to the above facts, at the time of the transfer contract in this case, 20 workers, including the non-party 3, etc. had the right to claim wages, etc. equivalent to KRW 2,568,807,479 for the south traffic, and the plaintiff paid substitute payments of KRW 1,141,173,910 to workers in the East traffic in lieu of the East traffic, on behalf of workers in the East traffic, the plaintiff subrogated to the right to claim wages, etc. from workers in the East traffic within the limit of the amount paid (Article 7 of the Wage Claim Guarantee Act), even if the plaintiff paid substitute payments after the transfer contract in this case, the plaintiff may exercise the right to claim reimbursement by exercising the right to claim wages, etc. of workers in subrogation for the East traffic in the East traffic as the preserved right (Therefore, the plaintiff's claim that the plaintiff is not entitled to exercise the right to claim revocation since it occurred after the contract in this case).

B. Meanwhile, in the procedure of recognition of the fact of bankruptcy, etc., the Defendant asserted that the Defendant’s transfer contract of this case was not constituted since the Plaintiff, who notified the Seoul Western District Labor Office of the transfer contract and provided substitute payment following the procedure of recognition of the fact of bankruptcy, etc., could have known the transfer contract of this case.

On the other hand, the plaintiff has a legal obligation to substitute for payment of wages and retirement allowances in case where the transfer contract in this case between Dongnam traffic and the defendant is acknowledged as bankrupt, regardless of whether it is a fraudulent act, and the company fails to pay wages and retirement allowances to workers for the last three months. On the other hand, the creditor's right of revocation is a system for preserving the debtor's responsible property and has the effect for the benefit of all creditors, and it is only meaningful for the exercise period of the creditor's right of revocation and it is irrelevant to the establishment of the fraudulent act. Thus, the defendant's above assertion is without merit.

3. Whether the fraudulent act is constituted;

A. Although a debtor's act of performance does not constitute a fraudulent act as a matter of principle, if the debtor in collusion with some creditors in excess of his/her obligation, thereby undermining other creditors, it would constitute a fraudulent act.

However, as of July 23, 2003, the debtor Dongnam Transport is an enterprise operating a bus transport business, and it is actually only the only property (other than the above 1. D., as seen in this paragraph, Dongnam Transport Business Association claims KRW 556,098,178, the purchase price of the bus in this case, which is already in compulsory execution procedure, and it is difficult to view it as the property that it can be disposed of by itself). The defendant's transfer of the bus in this case to the defendant is not distributed to the employees as argued by the defendant, but it is not distributed to the employees as the priority wage claim, and it is appropriated for KRW 50,00,000 to the employees' priority wage claim, and the defendant's own claim amounting to KRW 60,000,000 to the 60,000 won. Thus, the transfer contract in this case was made to meet the creditor's wages as alleged by the defendant, and it is not reasonable to consider it as the creditor's share in this case's own domestic transport as the creditor's share.

Therefore, it is reasonable that the instant transfer contract is a fraudulent act, and as long as the instant bus, which is the only property at the time the obligor South and North Korea traffic, is transferred, the intent of the Defendant, the other party to the fraudulent act, should also be presumed.

B. Judgment on the defendant's argument

(1) The defendant asserts to the purport that the transfer contract of this case was made as a substitute payment for workers' overdue wages, and that even if the transfer contract of this case was made as a fraudulent act on behalf of workers and not by the defendant himself/herself, the plaintiff should be the defendant, not only the defendant, but also 20 workers belonging to Dongnam Transportation, and that 220 workers should be distributed in proportion to the amount received by each worker.

On July 23, 2003, when the payment in substitutes of this case was made in this case, the fact that workers belonging to Dongnam Transportation had already retired as of July 23, 2003 is as mentioned above. According to the records of Gap evidence 15-1 to 2, Gap evidence 22-1 to 23-2, the non-party 4, the creditor of Dongnam Transportation, filed a lawsuit for the collection of the above 300 million won claim against the defendant (the defendant in the collection lawsuit of this case was the defendant of this case) which the defendant did not reach the judgment of the collection lawsuit and paid the above 300 million won to the non-party 4.3 billion won to the non-party 4, and the fact that the defendant distributed the price to workers who sold the instant bus to the future automobiles of this case, but instead, it is recognized that Hyundai Motor Vehicle or Dongnam Transportation (or the non-party 1) was paid the above 1,000,000 won out of the purchase price of this case.

Thus, the parties to the contract of this case are not 20 workers, but the defendant's individual, as alleged by the defendant. [A company's transfer contract of this case is concluded with the delegation of the employees, but such delegation relation does not appear (it is not sufficient to recognize only the statement of the evidence No. 22 presented by the defendant as evidence, and there is no other evidence to acknowledge it). This is a matter between the defendant and the workers, and it is only an internal settlement issue.] The defendant's above assertion is rejected.

(2) At the auction procedure requested by Hyundai Motors at the time, Hyundai Motor was a senior mortgagee, and the auction procedure was delayed and the prices of the instant buses were reduced. The Defendant asserted that the parking prices of the instant buses were above KRW 30 million per month, and that the instant buses did not dispose of the instant buses as soon as possible.

Workers, including the Defendant, have the right to preferentially pay wages for three months including the substitute payment in this case and retirement allowances for the employees who are in a position to be entitled to preferential payment over the right to collateral security, even if modern automobiles have the right to preferential payment in the auction procedure, and even in this case where the employees have the right to preferential payment, it is anticipated that the payment of wages and retirement allowances would be made to workers rather than in this case [in accordance with the Defendant’s assertion, it is probable that modern automobiles or non-party 1, and the Defendant would have paid 172 billion won from the transfer price of the instant bus [10 billion won - 50 million won - 30 million won from the Hyundai Motor Vehicles (or non-party 1) - 60 million won from the Defendant’s retirement payment for the employees, the Defendant’s assertion that the substitute payment in this case would not have been made more than 70 million won from the Defendant’s retirement payment in his own account of the fact that it would not have been made more than the Defendant’s retirement payment in this case.

(3) The defendant asserts that, even if a substitute payment is made under the Wage Claim Guarantee Act, there remain the preferred wage claims of workers, even if the substitute payment is made, the part should be deducted. However, the priority wage claims, which deduct substitute payment, are the rights of workers unrelated to the cancellation of the fraudulent act in this case, and are not at the location of the defendant's assertion or subrogation. Thus, the defendant's above assertion is without merit without further determination.

(4) Even where the plaintiff's claim of this case is accepted, the defendant asserts that the plaintiff's claim against the defendant in this court No. 2004Gahap11231, such as the plaintiff's evidence No. 231, the plaintiff's claim should be deducted since the plaintiff received double payment. However, since the plaintiff's claim against the defendant as the beneficiary is a claim against the subsequent purchaser on the revocation of the fraudulent act of this case against the defendant as the beneficiary, it is not directly related to this case, and the part to be considered in the case No. 2004Gahap11231, as alleged by the defendant should be considered as being paid double, should not be deducted in advance in this case. Thus, this part of the defendant's claim is without merit.

4. Scope of revocation and methods of reinstatement.

A. When the obligee exercises the obligee’s right of revocation, in principle, he cannot exercise the obligee’s right of revocation in excess of his claim amount. If the obligee’s right of revocation of fraudulent act and the obligee’s claim for restitution are acknowledged, the beneficiary is obligated to return the object of the fraudulent act to the obligor as restitution. If it is impossible or considerably difficult to return the original object, the beneficiary is obligated to compensate for the equivalent amount to the value of the object of the fraudulent act as a performance of duty to restore if it is impossible or considerably difficult to return the original object. Here, when it is impossible or considerably difficult to return the original object, it refers to the case in which the return of the original object is not simply absolute or physically impossible,

In this case, unless there are special circumstances, such as that the defendant, the beneficiary after the fraudulent act, sold it, and the beneficiary can transfer the object in good faith if the purchaser is the plaintiff, the creditor can only seek compensation equivalent to the value of the original return against the beneficiary instead of returning the object. In such a case, the amount of compensation to be made shall be the value of the object of the fraudulent act as at the time of the conclusion of arguments in fact-finding proceedings, which is at the time of revocation of the fraudulent act.

B. The Plaintiff’s delayed wage and retirement allowance amounting to KRW 1,141,173,910, which the Plaintiff exercised on behalf of workers by subrogation of workers by making a late payment to workers in the same south traffic, is as seen earlier. According to the evidence No. 20-6, it can be acknowledged that the appraisal of 42 buses constitutes 2,374,787,000. Thus, it is obvious in light of the empirical rule that the value of 86 buses and buses of this case would naturally be above the value of 2,374,787,00. The Plaintiff, within each limit above, sought payment of KRW 1,032,00,000, which is the value of the instant bus sold to future automobiles.

Therefore, the transfer contract concluded on July 23, 2003 with respect to the instant bus between the Defendant and the Dong-dong Transport shall be cancelled, and the Defendant, a beneficiary, shall be obligated to pay to the Plaintiff 1,032,000,000 won and 5% interest per annum from the day following the day when the judgment became final and conclusive to the day of full payment, as the Plaintiff’s restitution to the Plaintiff.

5. Conclusion

Therefore, each of the claims of this case is justified and it is so decided as per Disposition by the assent of all.

Judge Shin Jae-dae (Presiding Judge)