[1] The meaning of transfer of business and whether a labor relationship is succeeded in the case of transfer of business (affirmative)

[2] The standard for determining whether a transfer of business was made

[3] The legal nature of a decision to transfer contracts made by the Financial Supervisory Commission under Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry

[4] Whether the Financial Supervisory Commission can be deemed to have transferred its business through a decision to transfer a contract under Article 14(2) of the former Act on the Structural Improvement of the Financial Industry (negative)

[1] The term "transfer of business" refers to a company organized for a certain business purpose, i.e., transferring a human and material organization as a whole while maintaining its identity. In principle, when such transfer of business has been made, the relevant worker's labor relationship shall be comprehensively succeeded to the company that takes over.

[2] Whether a transfer of business has been made or not is determined by which business assets are transferred to any extent, but it should be determined by whether the previous business organization is maintained and the organization can function as a whole or an important part of the business organization. Thus, even if a business facility is transferred without reserving a part of the business property, it shall be deemed as a transfer of business, if it is acknowledged that the previous organization has been maintained even if it was transferred without reserving the part of the business property, it shall not be deemed as a transfer of business. However, even if the entire business property was transferred after demolishing the organization, it shall not be deemed as a transfer of business.

[3] The decision to transfer contracts made by the Financial Supervisory Commission pursuant to Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998) is an administrative disposition that causes legal effects of the transfer of contractual status in financial transaction by a unilateral decision of the Financial Supervisory Commission, and it is a method of arranging insolvent financial institutions by allowing an underwriting financial institution to transfer and take over only part of its assets and liabilities to a third party.

[4] It shall not be deemed that the effect of the transfer of business that involves employment succession pursuant to a decision on contract transfer pursuant to Article 14(2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998), which only transfers part of the superior assets of an insolvent financial institution to another financial institution for the liquidation and protection of depositors, has occurred.

[1] Article 41 of the Commercial Act, Article 30 of the Labor Standards Act / [2] Article 41 of the Commercial Act / [3] Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998), Article 5-4 of the former Enforcement Decree of the Act on the Structural Improvement of the Financial Industry (amended by Presidential Decree No. 15894 of September 22, 1998) / [4] Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998), Article 5-4 of the former Enforcement Decree of the Act on the Structural Improvement of the Financial Industry (amended by Presidential Decree No. 15894 of September 22, 1998), Article 41 of the Commercial Act

[1] Supreme Court Decisions 88Da15225 delivered on December 26, 198 (Gong1990, 354), Supreme Court Decision 91Da15225 delivered on August 9, 1991 (Gong1991, 2322), Supreme Court Decision 93Da18938 delivered on November 18, 1994 (Gong1995Sang, 43), Supreme Court Decision 97Da35085 delivered on November 25, 1997 (Gong1998Sang, 12), Supreme Court Decision 96Da826 delivered on April 14, 1998 (Gong1998, 1315) (Gong1998, 209Sang, 209Du36089 delivered on July 27, 201) / [300, 209Du400589 delivered on July 29, 2005)

Plaintiff 1 and 5 others (Attorneys Yi-soo et al., Counsel for the plaintiff-appellant)

Korea-U.S. Bank (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na26325 delivered on April 3, 2002

Each appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

1. As to the first proposal

A business transfer refers to a business entity organized by a certain business purpose, i.e., a business entity that maintains its identity and transfers its human and material organization as a whole. If such business transfer takes place, as a matter of principle, the labor relationship of the relevant workers shall be comprehensively succeeded to the business that takes over. However, whether the business transfer took place is not determined by which business property is transferred to any extent, but by which the existing business organization can function as a whole or an important part of the business organization. Therefore, even if the business facility was transferred with the reservation of a part of the business property, it shall be deemed as a business transfer if it is recognized in light of the social concept that the previous organization is maintained even if the business facility was transferred with the reservation of the part of the business property, but it shall not be deemed as a business transfer if it was removed and transferred with the entire business property (see Supreme Court Decision 9Du2680, Jul. 27, 2001).

On the other hand, a decision on contract transfer made by the Financial Supervisory Commission under Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998, hereinafter referred to as the "former Act on the Structural Improvement of the Financial Industry") is an administrative disposition that has a judicial effect of which contractual status in financial transactions is transferred by a unilateral decision of the Financial Supervisory Commission, and it is a method of arranging insolvent financial institutions by inducing a third party to transfer and take over only part of their assets and liabilities to a third party (see Supreme Court Decision 2001Da3807, Apr. 12, 2002).

In accordance with the evidence of the record, the Gyeonggi Bank Co., Ltd. (hereinafter referred to as the "Game Bank"), in 1997, transferred its assets to the defendant as a basis for the issue of contract transfer, and completely removed the employees of the Gyeonggi Bank as of the date of contract transfer, credit card business, trust business, assets and liabilities related to the securities investment business, and the status of the company's contract, which were classified as recovery agenda, estimated losses, and the Korea Assets Management Corporation transferred some assets necessary for the payment of wages and retirement allowances for employees of the Gyeonggi Bank, retirement allowances, etc., to the Gyeonggi Bank, and the Financial Supervisory Commission decided to transfer its assets to the Gyeonggi Bank under Article 14 (2) of the former Structural Improvement of the Financial Industry Act, together with the suspension of its business, suspension of its executives' duties, appointment of the administrator, etc., and decided to transfer its assets to the Gyeonggi Bank as of June 29, 1998. In accordance with the above decision of contract transfer plan, the Defendant concluded a new business decision to dismiss the company's employees from the Gyeonggi Bank as an employee.

Therefore, for the resolution of insolvent financial institutions and protection of depositors, it cannot be deemed that the effect of business transfer involving employment succession by a decision on contract transfer under Article 14(2) of the former Act on the Structural Improvement of the Financial Industry, which only transferred part of the outstanding assets of the insolvent financial institution to another financial institution for the resolution of insolvent financial institutions and for the protection of depositors, has occurred (see Supreme Court Decision 2000Da43932, Nov. 28, 200). In addition, even if the defendant acquired part of the remaining fixed assets in the Gyeonggi Bank under a separate agreement with the Gyeonggi Bank and newly employed part of the employees of the Gyeonggi Bank to resume the banking business as the defendant's branch of the previous Gyeonggi Bank, it cannot be deemed as the business transfer because it was conducted in the process of cancellation of the approval of banking

Ultimately, the court below's decision that the business transfer cannot be recognized in the facts of this case is just and there is no error of law by misapprehending the legal principles on the decision to transfer a contract, the business transfer, and the succession

In addition, Supreme Court Decision 96Da8826 delivered on April 14, 1998, Supreme Court Decision 93Da33173 delivered on June 28, 1994, Supreme Court Decision 91Da15225 delivered on August 9, 1991, Supreme Court Decision 88Da10128 delivered on December 26, 198, Supreme Court Decision 97Da35085 delivered on November 25, 1987, which held that the business transfer is recognized, and it is not appropriate to invoke the case in this case, because the case is different.

The grounds of appeal cannot be accepted.

2. As to the second proposal

As seen above, insofar as the labor relationship of employees of the Gyeonggi Bank was not succeeded to the defendant, the defendant cannot be deemed to have dismissed employees of the Gyeonggi Bank on the ground that the defendant was denied the existence of such labor relationship, and therefore, the court below did not explain the reason as to whether there was a legitimate ground, and did not err by misapprehending the legal principles on dismissal under the Labor Standards Act or by failing to pay for reasons.

In addition, the Supreme Court Decision 93Da33173 Decided June 28, 1994, which stated in this part of the grounds of appeal, is not appropriate to be invoked in this case, since the case is different.

The argument in the grounds of appeal is not accepted.

3. As to the third proposal

Even if the Plaintiff (Appointeds) did not transfer the business, the lower court rejected the aforementioned assertion on the ground that it was not recognized that the Defendant had implicitly succeeded to the employment relationship of employees of the Gyeonggi Bank.

Compared with the evidence of the record, the court below is just in holding that the defendant did not have succeeded to the labor relationship of the Gyeonggi Bank, and there is no error in the misapprehension of facts against the rules of evidence.

The grounds of appeal cannot be accepted.

4. Conclusion

Therefore, each appeal by the plaintiff (Appointed party) is dismissed, and all costs of appeal are assessed against the plaintiff (Appointed party). It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)