(영문) 광주지방법원 2015.9.24. 선고 2014구합11892 판결

A. The options test Co., Ltd. (hereinafter referred to as “observer”) is a company that has employed approximately thirty full-time workers and engaged in e-mail manufacturing business, etc. in 22 Da-ro 62-ro, Gwangju Northern-gu, Seoul.

B. Around June 12, 2006, the Plaintiff served as a member of the options test and retired on or around January 28, 2013, and was not paid approximately KRW 14.6 million (including retirement allowances). On or around June 5, 2013, the Plaintiff filed an application for recognition of the fact of bankruptcy, etc. regarding options, as prescribed by Article 7 of the former Wage Claim Guarantee Act (amended by Act No. 12528, Mar. 24, 2014; hereinafter the same shall apply), Article 5 of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 25630, Sept. 24, 2014; hereinafter the same shall apply).

D. On February 21, 2014, the Defendant issued a disposition not to recognize the fact of bankruptcy, etc. (hereinafter “instant disposition”) on the ground that “the Plaintiff is an employee in office, and there is a business registration certificate and an office, and the business is also discontinued or discontinued, such as the business is in operation.”

E. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on April 10, 2014, but the appeal was dismissed on August 12, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 3 and 4, the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

Taking into account the various circumstances at the time of the instant disposition, the options test satisfies the requirement of Article 5 (1) 2 of the former Enforcement Decree of the Wage Claim Guarantee Act, “it is in the process of closing the business.” Nevertheless, the instant disposition on a different premise is unlawful against the former Wage Claim Guarantee Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. Relevant provisions

Article 5 (1) of the former Enforcement Decree of the Wage Claim Guarantee Act provides that "the Minister of Employment and Labor may, upon a request from a retired worker without receiving the wages, etc., recognize that the employer has no ability to pay the unpaid wages, etc. (hereinafter referred to as "the fact-finding of bankruptcy, etc.") if all of the following requirements are met," and Article 5 (1) of the former Enforcement Decree of the Wage Claim Guarantee Act provides that "the business is discontinued in the course of closure of business due to any of

A. Item (c) provides that "if the main business facility is seized or provisionally seized or transferred for the repayment of debts at the status of suspension of production or business activity of the relevant business (including cases where an auction is being conducted under the Civil Execution Act)," "if the authorization, permission, registration, etc. of the relevant business is revoked or cancelled", or "if the main production or business activity of the relevant business has been suspended for not less than one month".

B. Determination

As seen next, it is difficult to view that the options test was in the process of the discontinuance of business on February 21, 2014, which was at the time of the instant disposition, for the reasons under any item of Article 5(1)2 of the former Enforcement Decree of the Act on Guarantee of Rights to Wage Claim. Therefore, the Plaintiff’s assertion is without merit.

1) First of all, in light of the following circumstances, it is difficult to deem that the options test even at the time of the instant disposition is a case that satisfies the above requirements, in light of the following circumstances, which are acknowledged by comprehensively considering the overall purport of the pleadings as follows: (a) the condition of suspension of production or business activity of the business among the grounds under Article 5(1)2 of the Enforcement Decree; and (c) the requirements under Article 5(1) of the said Enforcement Decree, which are recognized as being comprehensively based on the descriptions of evidence Nos. 2 through 1

A) On November 6, 2013 and February 13, 2014, the Defendant’s labor inspector entered an on-site trip to the workplace of the options test on two occasions, and each on-site trip letter stating the result of the above on-site trip stating that “the workplace is currently operating as a result of the on-site trip, and the employees could have confirmed that they were working.”

B) On December 2013, 2013, a certified labor attorney who has filed an application for recognition of the bankruptcy, etc. of the Plaintiff’s company (i.e., a value-added tax base certificate of options, and the export performance confirmation and certification on January 27, 2014) stated that the sales amount of KRW 3.4 billion in 2013, and KRW 6.44,000 in export performance amount in 2013, and (ii) an option test was partially paid to employees on December 2013, 2013. (iii) A certified labor attorney who has filed an application for recognition of the bankruptcy, etc. of options was investigated by Defendant labor inspector on March 1, 18, 2013; and (iv) the last resignation was currently under any operation, and (v) the labor inspector stated to the effect that he/she was not currently subject to the final resignation on March 28, 2014 (No. 5.6).

2) Next, there is no assertion or proof as to whether the authorization, permission, registration, etc. for the project of options has been cancelled or cancelled with respect to whether the project falls under the requirements of Article 5(1)2 (b) of the Enforcement Decree of the above. Thus, it is difficult to deem that the project falls under the above requirements.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.