2014Guhap223 Revocation of revocation of recognition of non-existence of Bankruptcy, etc.

A

The President of the Gwangju Regional Labor Agency

July 23, 2014

September 24, 2014

1. On October 31, 2013, the Defendant revoked the disposition of non-recognition of bankruptcy, etc. against the Plaintiff.

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

The same shall apply to the order.

1. Details of the disposition;

A. From October 23, 2006 to October 12, 2012, the Plaintiff retired from office at “C” operated by B, and C closed down on June 6, 2013.

B. As the Plaintiff did not receive retirement allowance of KRW 12,460,860 from B, on August 14, 2013, the Plaintiff filed a lawsuit against B seeking the payment of the said retirement allowance (2013 Ghana) with the Jeju District Court (28028) and received a favorable judgment of the Plaintiff on October 11, 2013, and the said judgment became final and conclusive around that time.

C. On August 8, 2013, the Plaintiff filed an application with the Defendant for fact-finding, such as bankruptcy under Article 4 of the Wage Claim Guarantee Act (hereinafter “the Act”), Si/Gun/Gu Decree (hereinafter “Enforcement Decree”), but, on October 31, 2013, the Defendant issued a non-recognition disposition on the ground that it cannot be deemed that B was unable or considerably difficult to pay retirement pay due to delayed payment (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 4 (including branch numbers, if any; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

B is not capable of paying wages, etc. as of the date of fact-finding, such as bankruptcy, or is considerably difficult to pay them. In addition, the Defendant did not visit the instant business establishment prior to the instant disposition, which is set forth in Article 8(3) of the Regulations on the Investigation and Confirmation of Facts, including Bankruptcy, and did not undergo

B. Relevant statutes

Article 7 of the Wage Claim Guarantee Act (Payment of Overdue Wages, etc.)

(1) Where an employer falls under any ground prescribed by Presidential Decree, such as bankruptcy, and a retired worker requests the payment of wages, etc. that have not been paid to him/her, the Minister of Employment and Labor shall, notwithstanding Article 469 of the Civil Act, pay unpaid wages, etc. on behalf

"Grounds prescribed by Presidential Decree, such as bankruptcy" in Article 4 (1) of the Enforcement Decree of the Wage Claim Guarantee Act means any of the following grounds:

3. Recognition of bankruptcy, etc. by the Minister of Employment and Labor under Article 5;

Article 5 (Requirements and Procedures for Recognition of Facts of Bankruptcy, etc.)

(1) Upon receipt of an application from a retired worker without receiving any wages, etc. from an employer, the Minister of Employment and Labor may recognize that the employer has no ability to pay the unpaid wages, etc. if the employer meets all of the following requirements (hereinafter referred to as "recognition of bankruptcy, etc."):

1. The number of regular employees calculated by the method specified in attached Table 1 (hereinafter referred to as "number of regular employees") shall not exceed 300 persons;

2. The business is discontinued or it is in the process of discontinuance due to any of the following causes:

3. The payment of wages, etc. shall be suspended due to the lack of ability to pay wages, etc. or any of the following grounds:

(a) Where the whereabouts of the employer is unknown for at least one month as of the date of recognition of the fact of bankruptcy, etc.;

(b) Where it is recognized that an employer will take part in the realization or recovery of his/her property for not less than three months from the date of application for recognition of bankruptcy, etc.

C. Determination

In light of the following circumstances, which are acknowledged by comprehensively considering the evidence mentioned above and the purport of the entire argument in Gap evidence Nos. 5, the lawsuit filed by the plaintiff is conducted by service by public notice due to the uncertainty of location in the lawsuit filed by the plaintiff for the above retirement allowance claim, D and Eul employed in the above C are also issued by the defendant and filed a lawsuit against Eul for the claim for wages, etc. against the defendant. The above D et al. applied for compulsory execution on the property owned by Eul such as real estate in order to receive overdue wages, but did not receive overdue wages after the lapse of one year after retirement, but the defendant did not submit evidence related to Eul's financial ability, and the defendant is deemed to have no ability to pay wages, etc., and thus, the disposition of this case by the defendant prior to the above different premise is unlawful.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

presiding judge, assistant judge and assistant judge

Judges Kim Gin-tae

Judges Yoon Dong-dong