Korea Labor Welfare Corporation (Attorneys Im Chang-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Clinical-soo, Counsel for defendant-appellant)

February 23, 2006

Seoul Southern District Court Decision 2004Gahap1203 Delivered on May 26, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff in both the first and second instances.

1. Purport of claim

The transfer contract concluded on July 23, 2003 between the defendant and Dong-dong Transport Co., Ltd. shall be revoked. The defendant shall pay to the plaintiff 1,032,000,000 won with 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The reasons why a party member should explain this part are as follows: "(2)" Nos. 43 through 6 of the judgment of the court of first instance is as follows: "(3) and the defendant appropriated 500 million won out of the price to pay the wages in arrears of his employees on July 24, 2003; "The defendant, at the time of 2002 other than the Seoul Western District Court Decision 2002ta, 17728; the automobile rental auction at the same court, around 2002, around 17735, Hyundai Automobile Co., Ltd. (hereinafter referred to as "Mod Automobile"), which had been conducting the auction procedure for the instant bus, withdraw the above auction procedure; and pay for the cancellation of registration of creation of a right to collateral security for the bus of this case." Since the fourth part of the judgment of the first instance, the defendant appropriated the remainder of 172,000,000 won out of the price for sale to pay the wages in arrears of his employees." The fourth part of the judgment is as follows No. 2141.

2. Determination on this safety defense

The Defendant’s purpose of the instant transfer contract is to transfer the instant bus to the employee’s payment in substitutes for the overdue wages, and the substantial parties are workers or at least the validity of the instant transfer contract to the employees. However, the Plaintiff’s subrogation of the employee’s wage claim as the preserved claim, thereby seeking revocation of fraudulent act and restitution to the employee who is not another person, is the employee’s exercise of the right to the employee’s wage claim, which has the same structure as seeking revocation of his/her legal act against himself/herself, and thus, the instant lawsuit is unlawful.

The Plaintiff acquires the right to subrogate the employee’s unpaid wage claim against the employer by paying unpaid wages on behalf of the employer in accordance with Article 7(1) of the Wage Claim Guarantee Act. Therefore, even if the amount and content of the claim are identical to the above subrogation claim, it cannot be deemed as identical to the employee’s wage claim against the employer unless the subject of the claim, the grounds for the occurrence of the claim, and so long as the amount and content of the claim are different, and the lawsuit in this case is not the same structure that the employee’s legal act is seeking revocation on the ground that it is a fraudulent act.

3. The plaintiff's assertion

At the time of entering into the instant transfer contract, Dongnam Transport concluded the instant transfer contract with the Defendant with the intent to impair the Plaintiff, although it was in excess of its obligation due to the burden of reimbursement of KRW 10,226,962,815 at the time of the conclusion of the instant transfer contract, and the Defendant concluded the instant transfer contract with the Defendant with the intent to impair the Plaintiff. Since it was well aware of such circumstances, the instant transfer contract entered into between Dongnam Transport and the Defendant shall be revoked as a fraudulent act detrimental to the Plaintiff, which is the obligee, and the Defendant shall be obliged to pay the Plaintiff the compensation for the equivalent amount of KRW 1,032,

4. Determination as to the existence of the preserved claim

A. The claim protected by the obligee’s right of revocation should, in principle, be arising before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of the establishment of the claim, has already been established at the time of the juristic act, and that the claim would have been created in the near future, and in the near future, the claim may also become the preserved claim of the obligee’s right

B. According to the facts acknowledged earlier, the plaintiff's subrogated claim was established only on November 28, 2003 when the plaintiff paid a substitute payment, and it was not yet occurred on July 23, 2003, which was at the time of the transfer contract of this case. However, according to Articles 6 (1) and 7 (1) of the Wage Claim Guarantee Act, the plaintiff can make a substitute payment where the retired worker claims payment of overdue wages due to the legal reasons such as bankruptcy, etc., and claim by subrogation against the business owner. The defendant et al. received a notice of non-recognition of bankruptcy, etc. on June 2, 2003 but filed a revocation lawsuit with the Seoul Administrative Court, and then withdrawn it on July 25, 2003, and applied for recognition of bankruptcy, etc. on July 28, 2003, the defendant et al.'s employees such as the defendant et al. had been in preparation for the transfer of subrogated substitute payment claim against the plaintiff et al.

In addition, according to Gap evidence No. 5, when the defendant entered into the transfer contract of this case with Dong traffic on July 23, 2002, prior to the withdrawal of the above revocation lawsuit, it is acknowledged that in calculating the amount of the overdue wages paid in substitution under the transfer contract of this case among the total amount of 2,950,727,370 won in the contract of this case, 1,351,548,112 of the substitute payments expected to be paid by the plaintiff among the items to be deducted. In light of the fact that the defendant estimated that the application for the recognition of bankruptcy, etc. will be accepted at the time of the conclusion of the transfer contract of this case, and it is highly probable that the plaintiff paid the overdue wages to the defendant and other workers on behalf of Dong traffic in order to establish the subrogation claim for Dong traffic.

In addition, the possibility of the plaintiff's acquisition of the subrogated claim was realized by paying the substitute payment of KRW 1,141,173,910 to the employees such as the defendant, etc. four months after the plaintiff was about four months.

C. In full view of the above facts, the instant subrogated claim may also become a preserved claim against the obligee’s right of revocation.

5. Determination as to the establishment of fraudulent act

A. Judgment on the defendant's assertion

(1) In filing an application for recognition of the fact of bankruptcy, etc., the Defendant notified the fact of the instant transfer contract to the Seoul Western District Labor Office, and the Plaintiff was also aware of the instant transfer contract, and if it has the substance as a fraudulent act that abused the substitute payment system, the Plaintiff or the head of the Seoul Western Labor Office should not make a substitute payment in whole or in part by determining that the substitute payment is “in a case where a substitute payment is filed by fraudulent or other unlawful means” and should not be paid, but rather, paid a substitute payment by reducing only the amount that is less than the initially expected amount by taking into account the instant transfer contract. Even if the instant contract was detrimental to the Plaintiff, the Defendant asserts that the instant transfer contract does not constitute a fraudulent act.

(2) According to the evidence No. 26-2 of Eul, the plaintiff investigated the defendant on September 24, 2003 in relation to the application for recognition of the fact of bankruptcy, etc., and it is recognized that according to the transfer contract of this case at the time, the plaintiff calculated substitute payment by deducting the amount paid first to the worker's wage due date from the amount paid, which is KRW 500,000,000 to Hyundai Motor, and KRW 300,000 to the non-party 1, and KRW 152,00,000 remaining after paying KRW 80,000 to the other right to collateral security, from the other right to collateral security.

However, even if the plaintiff was aware of the distribution of the transfer contract of this case and the sales price before the substitute payment was made, it is difficult to see that the transfer contract of this case was a fraudulent act, and such circumstance does not affect whether the transfer contract of this case was established as a fraudulent act. Thus, the defendant's assertion is without merit.

(b) Requirements for payment in kind to some creditors to constitute a fraudulent act;

(1) As seen earlier, Dongnam Traffic transferred the instant bus, which is the only property in fact only under the debt excess, to the employees’ payment in lieu of the overdue wages. If an obligor, who is normally in excess of debt, provided a part of creditors with real estate, etc., which is the only property of the obligor, as payment in lieu of payment in lieu of payment in favor of some creditors, such act would be a piracy in relation to other creditors

However, if some creditors who received payment in kind are creditors who have preferential right to payment on the debtor's general responsible property, such as small tenants, they are in a position to be given preferential payment in the subsequent distribution procedure, so even if they were given in advance to them as payment in kind, they cannot be viewed as fraudulent act insofar as their responsible property has been appraised at an adequate price.

On the other hand, even if some creditors who received payment in kind have preferential rights as above, if there are creditors with preferential rights of payment in preference to some of the creditors except for those creditors, a fraudulent act may not be established against the other general creditors, but it is reasonable to view that a fraudulent act is established against the creditors with preferential rights of payment in preference.

Therefore, as long as the transfer value of the instant bus offered for payment in lieu of the overdue wage claim is appraised properly for the general creditors, a fraudulent act may be established against the plaintiff regardless of the appropriateness of the transfer value, the following is to examine the possibility of establishing a fraudulent act based on which either the plaintiff's subrogation claim and the worker's overdue wage claim have senior preferential rights, regardless of the appropriateness of the transfer value.

(2) Whether it is possible to establish a fraudulent act based on whether the Plaintiff’s subrogated claim takes precedence over others

(A) As seen earlier, among the wages in arrears 2,568,807,479 won of the Defendant et al., the wages of the last three months and the retirement allowances for the last three years (the highest wage claim) with the highest priority payment right under Article 37(2) of the Labor Standards Act and the wages and retirement allowances (the highest wage claim) with the preferential payment right under Article 37(1) of the Labor Standards Act are combined.

(B) First, considering the possibility of establishing a fraudulent act by comparing the Plaintiff’s subrogation claim and the Defendant’s priority wage claim, both are the same order in law as the Plaintiff’s subrogation claim under the Wage Claim Guarantee Act merely exercises the Defendant’s priority wage claim on behalf of the Defendant. However, the Plaintiff’s subrogation claim is premised on the existence of the Defendant’s priority wage claim at all times. If the Plaintiff’s subrogation claim is extinguished by the employer’s repayment, etc. in advance, there is no possibility that the Plaintiff’s subrogation claim may be first generated to the extent of the lapse. Therefore, if the employer’s subrogation claim is paid in substitution for the repayment of the highest priority wage claim, the fraudulent act against the

(C) Next, the Plaintiff’s subrogated claim and the Defendant’s preferential wage claim are compared, and the standard for the practical process of the payment of substitute payment is examined earlier.

(1) Working standards for the payment of substitute payments to the Ministry of Labor.

If there is no express expression that the amount received by a worker who received part of the wages or retirement allowances from the employer before and after his retirement is part of the wages for the last three months and the retirement allowances for the last three years, that amount shall be deemed to have been first incurred or appropriated to the wage bonds that have come due, and the plaintiff shall be deemed to have been paid a substitute payment corresponding to the amount of wages or retirement allowances for the last three months and the final three years, considering that the amount was in arrears.

[Reasons for Recognition: Each description of reply attached to the evidence No. 26-2 of Eul and the evidence No. 62-4 of Eul]

② According to the above practical standards, a business owner may pay a preferential wage claim that comes due at any time before the Plaintiff calculates a substitute payment. In such a case, the Plaintiff does not assert that the amount paid should have been appropriated for the highest wage claim, and the Plaintiff is operating practice by calculating the preferential wage claim remaining and paying substitute payment to workers. Therefore, even if a preferential wage claim has a preferential right to reimbursement compared to a subrogated claim, as in this case, the Plaintiff still bears the obligation to pay a substitute payment by calculating the preferential wage claim that remains with respect to the Defendant, regardless of his/her preferential wage claim being appropriated for the repayment of the preferred wage claim. In this case, it is reasonable to deem that the Plaintiff, who did not err in the foregoing substitute payment before the substitute payment was made, could not claim the revocation of the substitute payment by asserting that the substitute payment was fraudulent act after the substitute payment was made. Therefore, the fraudulent act against the Plaintiff is not established solely on the ground that the substitute payment was made against the subordinated wage claim.

(3) Therefore, in this case, the issue of whether the Plaintiff’s subrogated claim is prior to or junior to the comparison with the overdue wage claim does not affect the establishment of a fraudulent act against the Plaintiff. Therefore, we examine whether the instant bus, which is the responsible property provided by payment in substitutes, has been assessed as an adequate transfer value.

C. Whether the transfer value of the instant bus is appropriate

(1) Whether the transfer value is appropriate

(A) Fact finding

① According to the appraisal result with respect to a bus that took place in the case of voluntary auction in the Seoul District Court Decision 2002Ma17728 for the 42 vehicles among the instant buses, the appraised price of the bus was KRW 2,374,787,000, but the instant bus was sold to the future automobiles in KRW 1,032,00,000, and the future automobiles again sold KRW 1,180,000 at KRW 7,8 months after the bus was purchased.

② Natural gas buses, such as the instant bus, are assessed and traded in an amount obtained by deducting the amount of subsidies from the bus price, as subsidies from the National Treasury, etc. are provided for each 22.5 million won per unit in cases of natural gas buses, such as the instant bus.

③ In the compulsory auction case of the bus 132 buses owned by Hansung bus Co., Ltd., the appraised price of the above buses was KRW 1,497,00,00,00 for the above buses in the Seoul District Court Decision 2002TTW 1796, 4313, but future automobiles was awarded the above buses at KRW 417,608,668.

[Grounds for Recognition: Evidence No. 12, Evidence No. 20-1 through 12, Evidence No. 4-1 through 3, Evidence No. 7, Evidence No. 28-1 through 3, Evidence No. 44-1 through 4, and Evidence No. 44-1 through 4, and the purport of the whole pleadings]

(B) According to the above facts, it cannot be deemed that the Defendant’s sales price of the instant bus to the future vehicle is the amount excessively underassessment of the price of KRW 1,032,00,000, which is the price for the instant bus to be sold by the future vehicle. However, the amount actually appropriated for the payment of the wages in arrears of the employees out of the above KRW 1,032,000,000 (the above KRW 1,032,000,000 - the above KRW 860,000,000 (the payment for the present automobile + KRW 300,000,0000 + the payment for the south traffic + the payment of KRW 60,000,000 for the Defendant’s payment for the Defendant’s payment of the wages in arrears, not for the transfer price for the present vehicle’s payment in collusion, as seen earlier, the Defendant’s payment of the wages in arrears should first be determined by taking into consideration the adequacy of the claim in Hyundai Motor Vehicle’s transfer contract.

(2) Whether the transfer value taking into account the distribution of the sale price is appropriate

In light of the aforementioned facts and facts, Eul evidence Nos. 5-1, 2, Eul evidence Nos. 6-1 through 6, Eul evidence Nos. 30-1 through 4, Eul evidence Nos. 37-1 through 7, Eul evidence Nos. 38-1 through 6, Eul evidence Nos. 46-1 through 94, Eul's testimony of non-party Nos. 46-2, the court's inquiry into Esp. 2, and the purport of the whole arguments in light of empirical rule, the following facts and facts are as follows: (a) 1,497,00,000 won car price of Hansung bus owned was awarded at KRW 417,60,08,668 in actual auction; (b) 1 through 7, Eul evidence No. 37-2, Eul's evidence Nos. 38-1 through 466, and (c) 300,000,000 won of Hyundai Car No.

Although the sale price of KRW 1,032,00,00, which can be seen as having been recovered again as a joint security among the sales price of KRW 300,000,000, which can be seen as having been recovered again as a joint security, the remainder of KRW 732,000,000 ($ 1,032,000,000 - KRW 300,000) - approximately 23.5% of the sales price of KRW 172,00,000,000 was appropriated for the payment of overdue interest, but the successful bid price of the bus was reference in the similar auction procedure. The decline in the prices of the bus and the increase in expenses incidental to the passenger car of this case was anticipated, and there was a need for cooperation among the parties related to Hyundai Motor, etc., Defendant workers, etc., who were spent in the process of selling the bus of this case at their own discretion and paying the overdue interest, shall be deemed to have a significant portion of the sale price of each of this case.

D. Therefore, the act of transferring the instant bus offered for payment in lieu of the overdue wage claim with preferential right to payment does not constitute a fraudulent act by evaluating the transfer value as above to the remaining creditors including the plaintiff at an adequate level. Therefore, the plaintiff's assertion that the instant transfer act is a fraudulent act is without merit.

6. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance, which has different conclusions, is unfair, so the judgment of the court of first instance is revoked by receiving the defendant's appeal, and the plaintiff's claim is dismissed as per Disposition.

Judges Park Jong-dae (Presiding Judge) Lee (Presiding Judge)