In case where workers have delegated the power to demand a distribution to the representative of workers, and the representative of workers has simply made a demand for distribution in his/her name on the date of distribution, whether there exists the validity of the demand for distribution to other workers than the said representative (negative)

A creditor who has the right to preferential payment under Article 605 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), the Civil Act and the Commercial Act and other Acts, shall be entitled to a distribution only in the case of a creditor who is naturally entitled to a distribution, such as a creditor of provisional seizure or a mortgagee extinguished by a successful bid and a mortgagee registered before the seizure takes effect, unlike the case of a creditor who has been registered before the seizure takes effect. Where a legitimate distribution has not been made, even if there is a right to preferential payment under the substantive law, he/she shall not receive a distribution from the successful bid price, and as the worker's wage claim is recognized as a right to preferential payment under the Labor Standards Act, he/she shall make a demand for a distribution in order to receive a distribution, and even if a worker delegates the right to demand a distribution to his/her representative, it shall not be recognized as having the effect of a demand for a distribution other than such representative.

[1] Article 42(1) of the Labor Standards Act, Article 605(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 88(1) of the Civil Execution Act)

Lee Jae-hoon (Law Firm Busan, Attorneys Jeong Jae-sung et al., Counsel for defendant-appellant)

Korea Technology Credit Guarantee Fund and four others

Changwon District Court Decision 200Gahap9840 delivered on September 26, 2002

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The judgment of the first instance is revoked. Of the dividend table prepared by the said court on October 8, 200 with respect to the auction case of real estate rent in Changwon District Court 9No. 44744, the dividend amount of KRW 43,494,680 against the defendant Republic of Korea (the director of the competent tax office): KRW 18,584,644; the dividend amount of KRW 23,972,340 for the defendant Republic of Korea (the director of the competent tax office): the dividend amount of KRW 4,695,935 for the defendant Korea; the dividend amount of KRW 12,50,468 for the defendant Korea Credit Guarantee Fund; the dividend amount of KRW 14,925,709 for the defendant Korea Guarantee Insurance Fund; and the dividend amount of KRW 4,365,971 for the defendant Busan District Bank; and the amount of KRW 296,960 for the plaintiff (the appointed party; hereinafter referred to as the "party") shall be corrected.

1. Basic facts

The following facts are either in dispute between the parties or in accordance with the evidence Nos. 1, 2, 6-1, 6-2, and 7 of the evidence Nos. 1, 1, 6-2, and 7, and there is no counter-proof.

A. On August 30, 1996, the Nancheon Bank Co., Ltd. (hereinafter referred to as the "Sancheon Bank") extended a loan from around 199 to the non-party friendly Industrial Co., Ltd. (hereinafter referred to as the "non-party friendly Co., Ltd.") and made as security each of the real estate listed in the separate sheet owned by the non-party friendly Co., Ltd. (hereinafter referred to as the "the real estate in this case") and factory machinery as the receipt of the Changwon District Court received 6055 of Changwon District Court received the non-party 1, the non-party 2, the mortgagee and the mortgagee are identical to the above-mentioned maximum debt amount, and the registration of the establishment of a mortgage with the maximum debt amount of KRW 3 billion was completed again on June 30, 1997.

(b)On the other hand, on January 23, 1998, the non-party counter-party counter-party counter-party counter-party counter-party contracting company (hereinafter referred to as the " counter-party contracting company") acquired the status of the borrower under the above loan contract entered into between the non-party counter-party contracting company and the non-party contracting company and completed registration for modification of the debtor's establishment registration from the non-party contracting company

(c)After that, on August 11, 1999, the Changwon District Court rendered a ruling to commence the auction of the real estate in this case as of August 99, 199 and as of April 30, 200, when the auction of the factory site, building, etc. was conducted as above, the factory operation was suspended on or after the end of April 200, and the plaintiff and the designated parties (hereinafter referred to as the "Plaintiff et al.") who are its workers were retired on or after the retirement allowance was not paid.

D. Accordingly, on July 25, 2000, the non-party Kim Shin, who is an employee of the speech industry, submitted to the above auction court an application for a demand for distribution of the amount of KRW 93,064,335 with the plaintiff et al. and his own accrued retirement allowances together with the retirement allowance account statement of the plaintiff et al., and on October 2, 2000, the plaintiff et al. demanded the designated party to pay the total amount of KRW 90,079,70 with the retirement allowances of the plaintiff et al. to the auction court.

E. On July 26, 2000, the auction court made a decision to permit the successful bid of the instant real estate, and prepared a distribution schedule on October 26, 2000, which is the date of distribution, as follows, and did not entirely distribute dividends to the Plaintiff, etc.

Distribution amount of creditors with priority

(1) Industrial Bank funds of the first priority mortgagee 60,562,081 won

(2) 23,659,080 won in the second seizure right holder Kim Sea market.

(3) The third applicant bank loans1,971,489,916 shall be the creditor of the third application.

(4) 58,710,140 won shall be granted to the fourth distribution authority, Kimhae Tax Office.

(5) 43,494,680 won in the Republic of Korea for the defendants holding the first priority of subsidies.

(6) 23,972,340 won shall be paid to the Republic of Korea by the persons holding the sixth priority subsidies and the defendants.

(7) The 7th provisional seizure authority and the 204,359,429 won Korea Technology Credit Guarantee Fund.

(8) 12,500,468 won, which is the first provisional seizure right holder and the Defendant Credit Guarantee Fund.

(9) The 4,595,761 won in single bank amount of the 7th provisional seizure authority corporation.

(10) Defendant 7rd provisional seizure, Defendant Seoul Guarantee Insurance Co., Ltd. in KRW 14,925,709

(11) 4,365,971 won in Busan Bank Co., Ltd., the defendant with the right of provisional seizure

(f) The Plaintiff appeared as the designated party of the Plaintiff, etc. on the date of the above distribution, and raised an objection to the distribution of KRW 25,023,516 out of the above amount of distribution under the jurisdiction of the Defendant Republic of Korea (competent: the head of Seosan Tax Office), the Korea Technology Credit Guarantee Fund, the Seoul Guarantee Fund, the Busan Guarantee Bank and the KIF Bank, the KIF Bank and the KIF Bank, and the KIF Bank, the KIF Co., Ltd., the KIF, and the KIF Bank, which received dividends

2. The plaintiff's assertion

The plaintiff asserts as follows.

A. The owner of the real estate of this case established the non-party company on October 25, 1982 and established the non-party company with the industrial machinery manufacturing business in Busan on January 7, 1991, and operated the engine parts manufacturing business at a factory located in 10-1, e.g., the e., the e., the e.g., the e., the e., the e.g., the e., the e., the e., the owner of the real estate of this case. On September 30, 1996, the non-party company discontinued the above e.g., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e. the e., the e. the e., the e. the e. the e., the company.

B. The Plaintiff et al. were employed as a worker in the superior industry and worked in the above Kim Sea Factory, and the Egras were established and closed down the company as above, and its affiliation was changed from the superior industry to the opposite industry, and the non-party company was changed from the opposite industry to the opposite industry, but it continued to work until the retirement from the above Kim Sea Factory without retirement.

(c) The plaintiff et al. was not paid retirement allowances, such as the annexed retirement allowance calculation table, which included the period of service from the long-term service to the retirement, after being employed in the preferred industry following the above retirement.

(d)In addition, the non-party company or the services industry continues to operate the above Kimhae Factory as an individual company that operated the above Kimhae Factory in substance, and it is substantially the same company. Thus, even if the real estate in this case is owned by the immigration, it shall be deemed to be included in the whole property of the employer as provided by Article 37 (2) of the Labor Standards Act, and therefore, the retirement allowance claim of the plaintiff et al. should have priority over the claims of the defendants, so the distribution schedule in this case should be modified as stated in the purport of the claim.

3. Determination

A. A creditor who has the right to preferential reimbursement under the Civil Act, the Commercial Act, and other Acts, which apply at the time of the instant distribution, may receive a distribution only in the case of a distribution by the successful bid date, unlike the case of a creditor who is a provisional seizure creditor registered prior to the entry into force of the seizure, a mortgagee or a mortgagee extinguished by a successful bid and a person registered prior to the entry into force of the seizure, etc., who is naturally entitled to a distribution. In the case of a lawful distribution, even if there is a right to preferential payment under the substantive law, a distribution cannot be made even if there is a right to preferential payment under the substantive law. Since the worker's wage claim is recognized as a right to preferential payment under the Labor Standards Act, in order to receive a distribution, the worker should make a demand for direct distribution in the case of a distribution of the employer's property under the principle of direct payment of wages under Article 42 of the Labor Standards Act, and even if a representative is delegated to the worker's representative to demand a distribution, the effect of the demand for distribution cannot be acknowledged by such representative alone.

In light of the above legal principles, with respect to the remaining retirement allowances of the plaintiff et al. as to the instant case, the fact that the Kim Shin Scar demanded an auction court to pay the unpaid retirement allowances of the plaintiff et al. as the representative of workers on July 25, 2000, which is the day immediately before the date of the successful bid. However, the aforementioned demand for distribution made under the name of the representative as the representative of workers shall not be deemed a legitimate demand for distribution against the plaintiff et al., other than the Kim Shin Scar. Meanwhile, according to the above, the plaintiff et al. made a new demand for distribution on October 2, 200 with the plaintiff et al. as the designated party, which was made after the lapse of the prescribed time limit, and it is illegal. The plaintiff's above assertion is no longer reasonable.

(b)In addition, Article 37 (2) of the Labor Standards Act limits the validity of general security rights in the public's request to guarantee the minimum living of workers and provides preferential rights to wage claims. In light of the purpose of legislation, "total property of an employer" subject to preferential rights to wage under the above provision refers to the whole property of an employer who is a party to a labor contract and is the primary employer who bears the primary obligation to pay wages. Therefore, in the case of an employer, it refers to only the property of the corporation itself, and the personal property of the business manager, such as the representative of the corporation, is not included in this (see Supreme Court Decision 95Da719 delivered on February 9, 196). The above legal principle applies regardless of whether the non-party company or the long-term industry is a private enterprise or not, and therefore, the real property of this case is not owned by the non-party company or the counter-party company and the counter-party company, not owned by the counter-party company or the counter-party industry, and therefore, the above argument of the plaintiff

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be dismissed as it is without merit. Accordingly, the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.

Judges Cho Ho-ho (Presiding Judge) Transfer to Han-young