(영문) 의정부지방법원 2016.12.1.선고 2016구합143 판결

1. Of the instant lawsuit, the part of the claim for revocation of a non-recognition of bankruptcy, etc. is dismissed. 2. The remaining claims of the Plaintiff are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

1. The Defendant’s rejection disposition of the payment of substitute payments against the Plaintiff on December 1, 2014 is revoked. 2. On December 1, 2014, the Defendant’s disposition of the rejection of the payment of substitute payments against the Plaintiff is revoked on December 1, 2014.

Reasons

1. Details of the disposition;

(a) Closure of Category B;

Around September 29, 2011, the Plaintiff was employed as “B engaged in laundry (laundry) business in the Pakistan-si, and went back on March 31, 2013. B was closed on June 30, 2013. (b) On March 28, 2014, D, a worker of D, who was an employee of D who was a non-recognition of bankruptcy, etc. against D, filed an application for recognition of bankruptcy, etc. against B pursuant to Article 2(1) of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 25840, Dec. 9, 2014; hereinafter the same shall apply), Article 5(2) of the former Enforcement Rule of the former Wage Claim Guarantee Act (amended by Ordinance of the Ministry of Employment and Labor No. 117, Dec. 31, 2014; hereinafter the same).

On December 1, 2014, "B" was formally closed on June 6, 2014 through the auction procedure, but in substance, "B continued to operate F after acquiring all human and physical resources of the business establishment from May 2014 and changing only the name of the representative and the name of the business establishment." The defendant issued a disposition of non-recognition of bankruptcy, etc. (hereinafter referred to as "disposition of non-recognition of bankruptcy, etc. of this case") and notified the same day.

C. The plaintiff's refusal to pay substitute payments

On August 13, 2014, the Plaintiff filed a claim for substitute payment with the Defendant under Article 9(1) of the former Enforcement Decree of the Wage Claim Guarantee Act and Article 5 of the former Enforcement Rule of the Wage Claim Guarantee Act.

On December 1, 2014, the defendant issued a disposition rejecting the payment of substitute payment (hereinafter referred to as the "disposition rejecting the payment of substitute payment of this case") on December 1, 2014 as the title "Notice of Confirmation of Facts (Dismissal) to the plaintiff," which is "B, as it is dealt with in the non-recognition of the application for recognition of bankruptcy, etc. on December 1, 2014."

[Ground of recognition] Facts without dispute, Gap evidence 6, 7 evidence, Eul evidence Nos. 4 through 7, the whole purport of the pleading; 2. Determination as to the defense prior to the merits

A. The defendant's assertion

Among the instant lawsuits, the part of the claim seeking revocation of the disposition not to recognize the bankruptcy, etc. of this case is unlawful as the period for filing the lawsuit expires.

B. Determination

1) In full view of Articles 18(1) and 20(1) of the Administrative Litigation Act, and Article 27(1) of the Administrative Appeals Act, when the method of immediately filing a lawsuit for revocation is chosen with the knowledge of the existence of an administrative disposition, a lawsuit for revocation shall be filed within 90 days from the date when the administrative disposition is known, and when the method of filing a lawsuit for administrative appeal is selected, a lawsuit for revocation shall be filed within 90 days from the date when the written adjudication on the administrative appeal is served after the request for administrative appeal is filed within 90 days from the date when the written adjudication on the administrative appeal is served: Provided, That in order to calculate the date when the written adjudication on the administrative appeal is served, the request for administrative appeal shall be lawful; in cases where the request for administrative appeal is filed 90 days from the date when the written adjudication on the administrative appeal becomes known, the period of filing a lawsuit for revocation shall not be calculated based on the date when the written adjudication on the administrative appeal is served; in such cases, 90 days from the date when the administrative appeal becomes aware of such disposition is filed (see, e.

A third party, who is not the other party to an administrative disposition, may file a petition for adjudication on the ground that there is a justifiable reason under the proviso of Article 27 (3) of the Administrative Appeals Act even after the lapse of 180 days from the date of the disposition, except in extenuating circumstances. However, if a third party is able to file a petition for adjudication within the period of a petition for adjudication under Article 27 (1) of the same Act, such as where he/she knows or could know about the fact that an administrative disposition has been taken or could be easily known due to any reason, he/she shall file a petition within 90 days from the time of the petition. In such cases, whether there is a justifiable reason that the third party fails to comply with the period of request shall not be a problem (see Supreme Court Decision 200Du3641, May 24

2) According to Article 7(6) of the former Wage Claim Guarantee Act (amended by Act No. 13047, Jan. 20, 2015); Article 9(1) and (2) of the former Enforcement Decree of the Wage Claim Guarantee Act; Article 5 of the former Enforcement Rule of the Wage Claim Guarantee Act, an employee is obliged to receive a substitute payment by receiving a substitute payment after obtaining the recognition of the fact of bankruptcy, etc. In light of the contents of these provisions, it can be said that the instant disposition of non-recognition of bankruptcy, etc. and the disposition of refusing to pay a substitute payment are closely related, but this is an independent administrative disposition that causes a separate legal effect by phase, and thus, it should be examined whether the period for filing a lawsuit by each disposition is complied with (see Supreme Court Decision 2003Du1257, Dec. 10, 2004).

3) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 8 through 10, the Plaintiff filed an administrative appeal seeking the revocation of the instant disposition rejecting the payment of substitute payment on February 26, 2015. On April 29, 2015, the Plaintiff filed an application for modification of the purport of the purport of the appeal seeking the revocation of the instant disposition rejecting the payment of substitute payment, and the filing of an application for modification of the purport of the purport of the appeal seeking the revocation of the instant disposition not to grant recognition of bankruptcy, etc. on April 29, 2015. The Central Administrative Appeals Commission dismissed the application for modification of the purport of the appeal on September 15, 2015, and dismissed the application for the revocation of the claim against the Plaintiff on November

According to the above facts, the plaintiff was notified of the rejection disposition of the payment of the substitute payment of this case around December 1, 2014 and became aware of the non-recognition disposition of the bankruptcy, etc. of this case.

Only around April 29, 2015, an application for revision of the purport of the claim to add the revocation of the instant disposition of non-recognition of bankruptcy, etc. was filed. It is apparent that the Plaintiff filed an administrative appeal against the non-recognition of bankruptcy, etc.. from December 1, 2014 to 90 days after the Plaintiff became aware of the disposition of non-recognition of bankruptcy, etc. Accordingly, the instant administrative appeal claim against the non-recognition of bankruptcy, etc. is unlawful. In addition, the instant lawsuit seeking the revocation of the instant disposition of non-recognition of bankruptcy, etc. was filed not only around December 1, 2014, but also on September 15, 2015, and only on February 16, 2016 after the lapse of the 90-day period for filing a claim against the revocation of the instant disposition of non-recognition of bankruptcy, etc. among the instant lawsuit.

4) The Defendant’s defense prior to the merits is with merit.

3. Whether the rejection disposition of the substitute payment of this case is legitimate

A. The plaintiff's assertion

The representative G discontinued the business, and E did not take over the business comprehensively by concluding a business takeover agreement even if it is impliedly with B. Since E establishes an independent company F and employs the existing employees, it is a separate company with no relationship with B. Although the Defendant would recognize the existence of bankruptcy, etc. against B, it is unlawful as it rejected the instant substitute payment on the premise of the foregoing non-recognition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

According to Article 7(6) of the former Wage Claim Guarantee Act, Article 9(1) and (2) of the former Enforcement Decree of the Wage Claim Guarantee Act, Article 5 of the former Enforcement Decree of the Wage Claim Guarantee Act, etc., an employee is entitled to request a substitute payment after obtaining recognition of bankruptcy, etc. Therefore, where an employee claims a substitute payment without obtaining recognition of bankruptcy, etc., the Minister of Employment and Labor, etc. may refuse to pay the substitute payment.

In this case, there is no evidence to acknowledge that the plaintiff or the other worker in the plaintiff or B was subject to the disposition of recognition of the facts of bankruptcy, etc., the defendant's refusal to pay a substitute payment is legitimate.

4. Conclusion

Therefore, the part of the claim for the revocation of the disposition of non-recognition of bankruptcy, etc. among the lawsuit in this case is dismissed as unlawful, and the part of the claim for the revocation of the disposition of rejection of the substitute payment in this case is dismissed as it is

Judges

The presiding judge and the fixed number of

Judges Cho Jong-Un

Judges Park Il-young

Note tin

1) Although the plaintiff was called the "disposition rejecting the confirmation of the reason for the substitute payment", it is reasonable to view it as a rejection disposition of the substitute payment.