(영문) 수원지방법원 2012.7.5. 선고 2011구합12673 판결

1. The Defendant’s disposition of non-recognition of bankruptcy, etc. against the Plaintiffs on October 11, 2011 is revoked. 2. The litigation cost is borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiffs provided labor under employment as a daily worker of the instant company from January 18, 2010 to May 30, 2010, at the site of the instant apartment construction works, which were subcontracted by A Co., Ltd. (hereinafter referred to as “B”) from B (hereinafter referred to as “instant company”).

B. On June 18, 2010, most of the plaintiffs, including D, E, F, G, H, I, and J, submitted to K, the original contractor of the apartment complex construction in this case, “B received the right to receive substitute payment from B under the pretext of a loan equivalent to B’s overdue wages, and later, delegate the right to receive substitute payment from the company in this case to K, the agent of B, and set off the said payment against B. B. B’s substitute payment if B does not actively cooperate in receiving substitute payment on his/her behalf, it was paid the amount equivalent to B’s overdue wages.” On April 14, 2011, the plaintiffs filed an application for recognition of bankruptcy, etc. on the ground that B was unable to receive wages for April 4, 2010.

D. On October 11, 201, the Defendant filed an application for the recognition of the bankruptcy, etc. of this case with the Plaintiffs, and as a result of the Defendant’s confirmation, the Defendant issued a disposition to recognize the non-existence of the fact of bankruptcy, etc. of the instant company (hereinafter “instant disposition”) with the purport that, among the applicants, the applicants, the Plaintiff did not constitute “worker who retired without receiving wages, etc. from the relevant employer” under Article 5(1) of the Enforcement Decree of the Act, on the premise that B would recover substitute payments from the employees and paid the total amount of wages in arrears to the applicants after receiving a letter of agreement on lending the amount equivalent to the overdue wages to the employees (hereinafter “reasons of disposition 1”), and thus, the applicants did not constitute “worker who retired without receiving wages, etc. from the relevant employer” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 10 evidence, Eul evidence 2 to 4 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The company of this case constitutes the requirements for recognition of bankruptcy, etc. in a situation where its main business activities have been suspended for not less than one month due to the discontinuance of its business, and even if some of the plaintiffs have the same grounds as the defendant's disposition, the application for recognition of bankruptcy, etc. filed by the majority of the plaintiffs is legitimate. Thus, the defendant should have made a substantive judgment as to whether the company of this case satisfies the requirements for recognition of bankruptcy, etc. under the Wage Claim Guarantee Act (hereinafter "Act"). Therefore, the disposition of this case which rejected the fact of bankruptcy, etc. against the company of this case is unlawful on the ground that there

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) According to Article 7 of the Act, Articles 4 and 5 of the Enforcement Decree of the Act, and Article 2 of the Enforcement Rule of the Act, the procedure for recognition of bankruptcy, etc. provides that in order to determine whether to pay overdue wages, etc., a substitute payment shall be separately filed with the Minister of Employment and Labor within two years from the date of recognition of bankruptcy, etc. in order to be paid the overdue wages, etc., in particular, Article 2(2) of the Enforcement Rule of the Act provides that "if there are two or more retired workers in the same business or workplace, the other retired workers may not submit the application if one of them has submitted the application for recognition of bankruptcy, etc. pursuant to paragraph (1)." Article 6(3) of the Regulations on Recognition of Bankruptcy, etc. and Confirmation of Employment, Trade Union, etc. (Rules of the Ministry of Employment and Labor No. 8 of the Ministry of Employment and Labor) provides that "the labor inspector shall have the right to apply for recognition of bankruptcy, etc., even if two or more workers who have retired from the same business or workplace apply for recognition of bankruptcy, etc."

(2) Whether the ground for 1 disposition is legitimate

In light of the above legal principles, according to the evidence Nos. 2 and 2, even though the defendant was confirmed by telephone, the plaintiff L, M, and N delegated the authority to apply for recognition of bankruptcy, etc. to K law firm, which is the legal representative of the plaintiffs. As long as some of the applicants have been legally applied for recognition of bankruptcy, etc., as long as the application for recognition of bankruptcy, etc. by some of the applicants was made, it is impossible to recognize the facts of bankruptcy, etc. without any substantive determination as to whether to delegate part of the whole applicants, on the ground that it is unclear whether to delegate the authority to apply for recognition of bankruptcy, etc. to the company of this case. However, in light of the overall purport of the arguments as set forth in evidence Nos. 2 and 10-1 through 23, it is reasonable to deem that the plaintiffs delegated the authority to apply for recognition of bankruptcy, etc. to K law firm, and therefore, the ground for Disposition No. 1 cannot be a legitimate ground for

(3) Whether the ground for the second disposition is lawful

As to whether a person who has received money equivalent to the wages in the name of loans from the original contractor, subject to the recovery of substitute payments, constitutes “worker retired without receiving wages, etc. from the relevant employer” under Article 5 (1) of the Enforcement Decree of the Act.

However, as seen earlier, although part of the plaintiffs paid the same amount as the amount of wages that were not paid by the company of this case from the company of this case, which is the original contractor B, the original contractor. However, as shown in the aforementioned factual relations, the agreement includes the agreement that the purpose of paying the amount is not the wages but the loan, and ② the agreement that the amount paid should be returned if the wages, etc. are not cooperative with the Ministry of Employment and Labor in recovering the substitute payment from the Ministry of Employment and Labor. However, if it is deemed that the workers lose their eligibility for applying for the recognition of bankruptcy, etc. on the ground that they were paid the amount of money equivalent to the wages under the condition of recovering substitute payments from a third party who is not the employer, it would result in preventing the workers from rapidly recovering the wages and maintaining their livelihood. ③ As seen above, the procedure for recognition of bankruptcy, etc. is contrary to the legislative intent of the law that guarantees workers’ livelihood by guaranteeing the payment of wages, and even if it is not immediately determined whether substitute payments were paid by the above, it cannot be considered that the plaintiffs lose their right to receive substitute payments.

Therefore, the instant disposition on this ground is unlawful.

(q) In addition, the defendant's assertion itself is about 17 persons who did not submit the written consent of this case among the plaintiffs, and at least about 17 plaintiffs who did not submit the written consent of this case, the defendant should have made a substantive judgment as to whether to recognize bankruptcy, etc.).

3. Conclusion

If so, the plaintiffs' claims of this case are justified and they are accepted. It is so decided as per Disposition.

Judges

The presiding judge, judge and assistant judge;

Judges Park Jae-woo

Judges Park Gin-uri

Attached Form

A person shall be appointed.

참조조문

-임금채권보장법

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