(영문) 광주지방법원 2012.6.21. 선고 2012구합10 판결

1. On November 8, 2011, the Defendant’s non-eligible disposition against Plaintiff A and B, and the non-eligible disposition against Plaintiff C, D, and E on the date of the substitute payment, respectively, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On October 1, 201, when a limited liability company F (hereinafter “instant company”) operated a transport equipment manufacturing business, the company closed its business on October 1, 201, and the Defendant found the instant company bankrupt and other facts on September 16, 201.

B. On May 24, 2010, when the Plaintiffs were employed in the instant company and dismissed on May 24, 2010, the Plaintiffs filed an application for unfair dismissal with the former Regional Labor Relations Commission. Accordingly, on August 23, 2010, the former Southern Regional Labor Relations Commission, which intended to reinstate the Plaintiffs, rejected the Plaintiffs’ application on the ground that there was no benefit from the request for remedy on August 30, 2010, and the National Labor Relations Commission also rendered a decision to dismiss the Plaintiffs’ application for reexamination on November 30, 2010.

C. Thereafter, on November 2, 2010, the plaintiffs filed a lawsuit against the company in this case against the company in this case for claiming the payment of unpaid wages from the company in this case during the period of dismissal (from May 24, 2010 to August 22, 2010) as Seoul District Court Branch Branch 2010Kadan15767. The above court accepted the plaintiffs' claim on April 13, 201 by recognizing that the company in this case was unfair. The above judgment became final and conclusive on May 25, 2011.

D. On September 21, 201, the Plaintiffs filed a claim with the Defendant for confirmation of the amount of retirement allowances not paid by the instant company and the wages during the period of dismissal, and the payment of the said substitute payment.

E. Accordingly, on November 8, 201, the Defendant issued an order of payment by the court during the period of dismissal on the ground that the money and valuables ordered payment by the court is only equivalent to the wage, and cannot be seen as the wage, with respect to Plaintiff A, B, the Plaintiff C, D, and E, the non-eligible disposition of partial non-eligible disposition of payment of substitute payment for the wages during the period of dismissal except for retirement allowances (hereinafter “each disposition of this case”).

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 3 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The plaintiffs filed a lawsuit against the company in this case seeking payment of wages which have not been paid during the period of dismissal, and even if the plaintiffs did not provide their labor during the period of dismissal, it is unfair to see the disadvantage of the plaintiffs since it is due to the reasons attributable to the company in this case. Thus, the money and valuables which the plaintiffs did not receive from the company in this case during the period of dismissal are not equivalent to the wages, but are subject to substitute payment itself, and thus, each disposition in this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Where a dismissal disposition against a worker becomes null and void, the labor contract relation still remains valid, and the worker's failure to provide his/her labor during the period of dismissal is attributable to the cause attributable to the employer who makes an unfair dismissal, and thus, the worker may seek payment of all wages in return for the continued work in accordance with Article 538 (1) of the Civil Act. The wage entitled to seek payment refers to the wage prescribed in Article 2 of the Labor Standards Act. If the dismissal disposition is null and void, the labor contract relation has been continuously maintained during the period. Thus, the worker is entitled to receive wages, etc. which have not been paid by the employer under Article 7 of the Wage Claim Guarantee Act as a substitute payment (see, e.g., Supreme Court Decision 2010Du5479, Jul. 22, 2010).

As seen above, it can be acknowledged that the plaintiffs were dismissed on May 24, 2010 by the company of this case and returned to the original state on August 23, 2010. Thus, dismissal of the plaintiffs shall be null and void as a dismissal without any justifiable reason. Even if the plaintiffs did not actually provide labor after dismissal, it is due to the reasons attributable to the company of this case where the plaintiffs were dismissed. Thus, it is reasonable to view that the money and valuables for which the plaintiffs were not paid during the above dismissal period are not equivalent to wages, but are subject to substitute payment as their own wages. Accordingly, each of the dispositions of this case on different premise is unlawful.

3. Conclusion

Then, each claim of the plaintiffs shall be accepted with due cause, and it is so decided as per Disposition.