Scope of a immediately preceding contractor jointly and severally liable for the payment of wages with respect to a contract business under Article 43 of the Labor Standards Act;

The purport of Article 43 of the Labor Standards Act is to provide that the contractor shall bear the responsibility for workers not receiving wages in cases where there are certain causes attributable to the contractor, taking into account the dependence and dependence on the contractor. Therefore, it is interpreted that the contract is not made over a number of occasions or several times, but where there are multiple contractor, the contractor shall be held jointly and severally liable.

[1] Article 43 of the Labor Standards Act

A and one other (Attorneys Song Jin-jin et al., Counsel for the defendant-appellant)

Alho Construction Co., Ltd. and one other

1. The defendant Alced Construction Co., Ltd. shall pay to each of the designated parties listed in the annexed Form 1 the amount equal to the amount of unpaid wages listed in the annexed Form 2, as well as 5% per annum from August 1, 2001 to October 17, 2001, and 25% per annum from the next day to the day of full payment.

2. The plaintiff (Appointeds)'s claims against Defendant B corporation are all dismissed.

3. Of the litigation costs, the part arising between the Plaintiff (Appointed) and the Defendant’s Joint Construction Company is borne by the Defendant’s Joint Construction Company, while the part arising between the Plaintiff (Appointed) and the Defendant’s Joint Construction Company is borne by the Plaintiff (Appointed Party).

4. Paragraph 1 can be provisionally executed.

The Defendants shall jointly and severally pay to each of the designated parties listed in the attached Form 1, 5% interest per annum from August 1, 2001 to the delivery date of the copy of the complaint of this case, and 25% interest per annum from the next day to the day of full payment.

1. The plaintiff (appointed)'s assertion

가.선정자들은 소외 주식회사 동우건업(이하 '동우건업'이라 한다)에 고용된 근로자들이고, 피고 알찬종합건설 주식회사(이하 '알찬건설'이라 한다；2001. 2. 22. 상호를 주식회사 알찬건설광업에서 현재의 알찬종합건설 주식회사로 변경하였다)는 2001. 1. 29. 피고 B 주식회사(이하 'B'라 한다)로부터 충북 진천군 C 등에 있는 B 공장의 토목공사(이하 '이 사건 공사'라 한다)를 공사대금 300,000,000원으로 하여 공사가 준공되면 그 대금을 정산하기로 하고 수급받아, 2001. 4. 13. 동우건업에 공사대금을 400,000,000원으로 하되 준공검사를 마친 후 15일 이내에 현금으로 그 대금을 지급하기로 약정하고 하도급주었다.

(b)Dong Ho Construction started the instant construction work on April 13, 2001 and completed its construction work on July 31, 2001, and applied for a completion inspection on or around August 6, 2001 and was inspected by Defendant Alcom Construction around that time.

(c)However, Defendant B and Alcom Construction do not pay the work price yet, and even the designated parties are not paid the wages as shown in the attached Table (2) of the unpaid wage table.

2. Determination as to a claim for Defendant Supporting Construction

As to the plaintiff's assertion as stated in the preceding paragraph, defendant Alcom Construction seems to have led to confession under Article 139 of the Civil Procedure Act.

Thus, Defendant Alcom Construction is a direct contractor of the same kind of business, and the same kind of business has not been paid wages to the designated parties because it was not a direct contractor of the same kind of business due to its own fault. Therefore, Defendant Alcom Construction is jointly and severally liable to pay the corresponding wages to the designated parties

3. Determination as to the claim against the defendant B

According to Article 43 of the Labor Standards Act, if a subcontractor fails to pay wages to workers due to a cause attributable to the immediate upper-tier contractor, the immediately upper-tier contractor is jointly and severally liable for the payment of wages to the relevant subcontractor. Thus, the representative director D of the Defendant B is not only involved in the subcontract of the instant construction work and the construction work is adjusted, but also the on-site supervision is conducted without any construction work, and the same construction work is not paid to the designated parties due to the cause attributable to the Defendant B. Thus, the Defendant B is jointly and severally liable for the payment of wages to the designated parties, such as the immediately upper-tier contractor.

In light of the degree of dependence and dependence on the contractor, the purport of the above provision is to have the subcontractor bear the responsibility for which the worker is unable to receive wages in cases where there are certain causes attributable to the worker, so it is interpreted that the contract shall not be held on a case-by-case basis or several occasions. However, if there are multiple contractor because the contract is made on several occasions, it shall be deemed that the contractor who is jointly and severally liable falls under only the immediate preceding contractor.

Thus, Defendant B cannot be deemed as jointly and severally liable for the payment of wages to the designated parties on the ground that the above provision exists, and on the other hand, it cannot be deemed that Defendant B is jointly and severally liable for the payment of wages to the designated parties on the basis of the remaining grounds, such as the Plaintiff (Appointed Party)’s remaining assertion.

4. Conclusion

Therefore, since the plaintiff (Appointed party)'s claim against the defendant Alcom Construction is well-grounded, it shall be accepted. The plaintiff (Appointed party)'s claim against the defendant B is without merit, and all of them are dismissed. It is so decided as per Disposition.

Judges Choi Young-young (Presiding Judge)