(영문) 수원지방법원 2016.6.8.선고 2015구합66685 판결

1. The Defendant’s rejection disposition of the payment of each substitute payment against Plaintiff A and B on September 30, 2014 and the rejection disposition of the payment of each substitute payment against Plaintiff C on October 14, 2014 is 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. D Co., Ltd. (hereinafter “instant company”) was established on March 9, 199 and engaged in soil construction business, etc., and was declared bankrupt on May 7, 2014 and 2013hap54 of this Court.

B. On July 9, 2014, the Plaintiffs filed a claim with the Defendant for confirmation of eligibility for substitute payment on the ground that the Defendant was not paid wages and retirement allowances from the instant company. Accordingly, the Defendant was registered as a director or auditor on the corporate register of the instant company and owned the shares of the instant company under the Labor Standards Act.

On September 30, 2014, Plaintiff A and B were subject to each of the instant dispositions against Plaintiff C on October 14, 2014, and each of the instant dispositions against Plaintiff C on October 14, 2014.

D. The Plaintiffs filed an administrative appeal seeking revocation of each of the dispositions of this case, but the Central Administrative Appeals Commission dismissed all the Plaintiffs’ appeals on July 14, 2015. [Grounds for recognition] did not dispute, Gap evidence 1-3, Gap evidence 1-1-3, Eul evidence 4-1-5, Eul evidence 1-5, and the purport of the whole loan loan.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

The Plaintiffs are registered as directors or auditors on the corporate registry of the instant company, and are deemed to hold the shares of the instant company on the corporate registry of the instant company. However, at the request of the representative director E of the instant company, they merely lend the name in form, and the Plaintiffs do not actually act as the executive officer of the instant company or exercise the rights as shareholders. The Plaintiffs, like other employees, worked daily to work and performed duties as the representative director, and received the benefits determined by the company in return, constitutes workers under the Labor Standards Act. Each disposition of the instant case on different premise is unlawful.

B. Relevant legislation

It is as shown in the attached Table related statutes.

1) From March 9, 199, Plaintiff A worked for the instant company from March 9, 199, Plaintiff B from March 1, 2007, and Plaintiff C from October 1, 2007 to October 8, 2013, respectively. The instant company filed a petition for bankruptcy with the instant court on November 8, 2013.

2) On the corporate register of the instant company, the Plaintiff A was registered as a director of the instant company on May 10, 2006, with the resignation of F, who is the former director, and on the same day. ② Plaintiff B was registered as a director of the instant company on September 6, 2007, when G, who is the former director, was dismissed on the same day. ③ Plaintiff C was appointed as an internal director of the instant company on March 30, 2009 on the same day while H, who is the former director, was appointed as the internal director of the instant company on the same day, and then resigned on February 28, 2013, and the former auditor I (E) was dismissed on February 28, 2013, and was registered as an auditor of the instant company on March 1, 2013.

3) As of August 30, 2013 on the list of shareholders of the instant company, 27,000 shares (30%) out of 90,00 shares issued by the instant company are listed as follows: E, the representative director of the instant company; 18,00 shares (20%) are Plaintiffs B, A, 15,00 shares (16.67%) as Plaintiff B, 9,000 shares (10%) as Plaintiff C, 12,00 shares (13.3%) as Plaintiff C, 12,00 shares (13%) as well as J (E) holding each of the above shares; and the Plaintiffs are listed as 3,00 shares (3.3%) as 3,00 shares (33%) with respect to each of the above shares. The Plaintiffs did not have paid or received any dividend for shares.

4) The Plaintiff A, as the chief of the department, was in charge of the duties of the field director, who hired necessary daily workers in consideration of the site conditions according to the work order of the head office, and instruct work in line with the work process to the daily worker. Although the working days or working hours were not separately determined, the Plaintiff A, who was in charge of leading and supervising the work at the site and the work on a daily basis, was on the upcoming twice a

5) Plaintiff B was employed as the head of the department and was in charge of the duties of the head of the field office at the time of retirement, and was in charge of the rental business in consultation with the ordering office and the immediately preceding contractor about the change of the actual management and the change of the construction method. Although the working days or working hours were not separately determined, Plaintiff B was in charge of the rental business in consultation with the ordering office and the immediately preceding contractor. However, upon receiving business instructions from E, performed duties by visiting the head office of the government office or the immediately preceding contractor from time to time, and reported

6) At the head office of the instant company, C was in charge of the management of the details (the details of the contract, the modification of the design, the details of the drawings), and the management of drawings at the head office of the instant company, and worked from 8 A.M. to 6 P.M. each day.

7) The Plaintiffs received a certain monthly wage, and subscribed to national pension, employment insurance, industrial accident insurance, and health insurance, and accordingly the insurance premium was deducted from the benefits, and the wage and salary tax was also withheld.

8) In this Court, the witness E testified that the instant company is the same as the individual company of the witness. The Plaintiffs were all employees performing duties according to the direction of the witness, and were registered as executive officers in the form of a registry to meet the number of statutory directors regardless of the position in the company. The Plaintiffs testified to the effect that “the fact that the board of directors or the general meeting of shareholders is not actually held.”

9) On March 22, 2005, H joined the instant company. On September 6, 2007, H was registered as a director on the corporate register, and resigned on March 30, 2009. On March 13, 2013, H retired the instant company. During the process of being registered as a registration director of the instant company, he was present in this court as a witness, and he was paid a certain amount of wages determined by the company, as the head of the division, and was paid a certain amount of wages determined by the Plaintiff A and B. The instant company’s shares were in actual possession of 10%, and the Plaintiffs and witnesses lent only in the name of the shareholder. There was no distribution as a shareholder, nor did the general meeting of shareholders or the board of directors participate in the instant company’s meetings once a year. The testimony was made to the effect that the Plaintiffs and the witness did not participate in the instant company’s management.

10) When the Plaintiffs were listed as directors or auditors on the corporate register of the instant company, there was no separate annual salary contract or wage increase, and there was no change in the contents of the business.

[Reasons for Recognition] Facts without dispute, Gap evidence 4-1, 2, 8, 9, 12 through 16, Gap evidence 20 through 24, Gap evidence 26, 30, 33, 37, 39, 40, 44, Eul evidence 2 through 4, witness E, and Eul's testimony, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

1) A substitute payment means wages, etc. paid on behalf of a business owner who has been declared bankrupt by the Minister of Employment and Labor pursuant to Article 7 of the former Wage Claim Guarantee Act (amended by Act No. 13047, Jan. 20, 2015; hereinafter the same shall apply) and Article 7 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 25630, Sept. 24, 2014); and under Article 2 of the Wage Rights Guarantee Act, "worker" means a worker under Article 2 of the Labor Standards Act, and Article 2(1)1 of the Labor Standards Act provides that "worker" means a person who provides a business or workplace for wages regardless of the type of occupation.

In determining whether a contract constitutes a worker under the Labor Standards Act, regardless of whether the contract is an employment contract under the Civil Act or a contract for work, or a subordinate relationship with an employer for the purpose of wages in substance, whether the contract provides work to the employer for the purpose of wages. In determining whether a subordinate relationship exists, the determination of whether the contents of work are determined by the employer, whether the employer is subject to personnel regulations, etc. of the rules of employment, whether the employer is specifically and directly directed and supervised by the employer in the course of performing his/her duties, whether the time and place of work are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker has a substitute nature of work, whether the remuneration has a basic level or fixed wage, whether the wage has a characteristic of work itself, whether the continuousness and degree of the provision of work, whether the employer has exclusive status as an employee under other Acts and subordinate statutes, and whether the worker is subject to the social security system, and whether the worker is subject to the above 205 company’s economic standard should be comprehensively considered (see, 2005).

2) Circumstances that can be seen in addition to the overall purport of the loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan.

3. Conclusion

The plaintiffs' respective claims of this case are with merit, and this decision is delivered with the assent of all.