The case holding that a director or an auditor is a worker under the Labor Standards Act, in case where he was registered as a director or auditor of a company, or even if he was engaged in the duties of director or auditor, and provided certain labor to the company and received certain remuneration in return, in addition to the delegated duties.

The case holding that even if a director or auditor was registered as a director or auditor of a company in the form of a company, or even if he had performed the duties of director or auditor, if he provided certain labor to the company and received certain remuneration in return, such director or auditor shall be a worker under the Labor Standards Act.

[1] Article 14 of the Labor Standards Act

Supreme Court Decision 96Da33037, 33044 Decided October 24, 1997 (Gong1997Ha, 3577) Supreme Court Decision 97Da44393 Decided December 23, 1997

Head Hoho et al. (Attorney Kim Na-na, Counsel for the defendant-appellant)

Gwangju Bank (Attorney Han-soo, Counsel for defendant-appellant)

1. Of the distribution schedule prepared by the same court on February 9, 1999 with respect to the case of auction of real estate (No. 98 Taju District Court) No. 17143, the amount of dividends to the Gwangju Bank shall be changed to KRW 214,88,244,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or there is no conflict between Gap evidence 1, Gap evidence 2-1, 2-3, Eul evidence 4, Eul evidence 1-1, Eul evidence 2-2, Eul evidence 3-1, Eul evidence 3-1, 2-2, Eul evidence 4-1, and Eul evidence 4-2, and there is no counter-proof.

A. On June 21, 1994, the Defendant registered the first priority mortgage theory with the mortgagee and the debtor as the defendant company, the debtor company, the non-party company, the maximum debt amount, 150,000,000 won on January 20, 1995, and thereafter leased the real estate of this case to the non-party company, the non-party company, the debtor, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the non-party company, the second priority of the second priority of 1447,50,000 won, and the second priority of 20,000 won.

B. After that, the non-party company had defaulted on February 7, 1998, and the defendant, as the creditor, filed an application for voluntary auction of the real estate of this case, which is a security, with the Gwangju District Court Decision 98 Ma17143 on March 23, 199, and the real estate of this case, which is the security, was awarded to the non-party 2 on January 8, 1999, with the claim amounting to KRW 47,62,609 and overdue interest 113,48,621.

C.On the other hand, 20 workers of the non-party company, including the plaintiffs, were unable to receive wages and retirement allowances from the non-party company due to the above default, and around 198, the Gwangju District Court rendered a favorable judgment against the non-party company by filing a lawsuit claiming wages, etc. (24,571,322 won, 11,835,434 won, 24,545,386 won, 21,403,288 won against the non-party company, and damages for delay at the rate of 25% per annum from August 5, 1998 to the non-party company. The above judgment became final and conclusive.

(d)The plaintiff and the non-party regular workers, et al., of 15,000 won in total, 158,865,119 won in total, with the designated parties, for three months from December 197 to February 1998 (the non-party regular workers, et al., 105,609,689 + the plaintiff's wages and retirement allowances for three months from December 1997 to February 198, 53,25,430 won in total, for three months from February 1997 to February 1, 1998 (the specific details are as shown in the attached Table) and for filing a report on the right and a request for distribution with the court of auction.

(e)The defendant, as the applicant for auction, has submitted to the court of auction a statement of claims seeking distributions of principal amounting to KRW 477,662,609 and interest amounting to KRW 113,48,621;

F. The auction court paid dividends of KRW 320,49,97,93, the remainder after deducting the enforcement cost of KRW 4,144,740,00 from the amount of 324,642,673 on February 9, 1999. The court did not first distribute the remainder of KRW 320,49,689,689 on the ground that only the non-party regular and non-party 15, other than the plaintiffs, was amended by Act No. 5473 on December 24, 1997; hereinafter the same shall apply) to the defendant, who was a mortgagee, on the basis of subparagraphs 1 and 2 of Article 37 (2) of the Labor Standards Act (amended by Act No. 5510 on February 20, 1998; hereinafter the same shall apply) to the non-party 2, who was the mortgagee, for three months from December 12, 1997 to February 2, 1988.

G. On the date of distribution, the Plaintiffs raised an objection against this case by asserting that the amount of KRW 53,255,430, out of KRW 214,882,244, which is to be distributed to the Defendant on the date of distribution, is the total sum of wages and retirement allowances to be distributed to the Plaintiffs who are workers under the Labor Standards Act, from December 12, 1997 to February 1, 198, and thereafter filed a lawsuit of demurrer against the distribution of this case.

2. Determination of the parties' arguments

A. The plaintiff and the defendant's assertion

The plaintiffs asserted that the auction price of real estate in this case, which is the goods subject to auction under Article 37 (2) 1 and 2 of the Labor Standards Act and Article 2 (2) of the Addenda of the Labor Standards Act, is unfair on the grounds that they were registered as directors or auditors during the work period of the non-party company from December 1997 to February 2, 198, the sum of the wages and retirement allowances for the last three months (the total amount of retirement allowances from March 29, 1989 to December 23, 197 and the retirement allowances for the last three years from February 24, 1997 to February 28, 1998) 53,25,430 won should be paid in preference to the defendant, who is the first and second collective security right holder, and therefore, the auction court is not just for the plaintiff 1 or 2 to whom the above provisions of the Labor Standards Act were applied to the non-party 1 to the non-party 2's employees or auditors.

(b) Markets:

Therefore, the following facts may be acknowledged in light of the following facts in light of Gap evidence 5-1, Eul evidence 5-2, Eul evidence 6-1 through 14, Eul evidence 7-1 through 7, Eul evidence 6-1 through 6-4, Eul evidence 6-1 to Eul evidence 6-4, Eul evidence 6-1 and the fact inquiry results with respect to the chief executive officer of the National Pension Management Corporation of this court, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 3-3, Eul evidence 3-4, Eul evidence 5-4, and Eul evidence 5-5, and some testimonys of the witness ho-de of this court are insufficient to reverse the above facts and there is no counter-proof otherwise.

(1) On August 24, 1992, the plaintiff head of the plaintiff company entered the non-party company and was in charge of the technical department in charge of the electrical control tower until he retires on February 28, 1998, and the design, manufacturing, installation, and trial operation related to the electrical control tower. The plaintiff Park Jong-sung joined the non-party company on January 27, 1997 and was in charge of the production director until he retires on February 28, 1998, and operated the facilities, manufacturing, installation, and trial operation at the factory site. The plaintiff Seo-won was in charge of the work of manufacturing and electric equipment and the work of manufacturing and operation of the non-party company from around January 27, 1995 to around August 27, 1991, the head of the business division from around January 1, 1997 to around January 1, 1997 to work for the non-party company as the director in charge of the machinery manufacturing and operation of the plaintiff company.

(2) On December 21, 1990, the non-party company was 20 or more employees of the non-party Ho Ho-ho who was the representative director, for the purpose of designing, manufacturing, and selling industrial machinery. The above old Ho-ho was 20 or more employees of the company, which was established with their relatives, friendships, friendships, etc. as shareholders. When preparing documents related to the company's affairs, such as the minutes of the board of directors meeting, the auditor was from July 21, 1994 to January 31, 1996; the auditor was from July 22, 1996 to January 16, 197; the director was the director from July 20, 197 to the time of retirement; the director was the director from January 24, 198 to the director from January 16, 197; the director was actually listed in the company's corporate register of the non-party 198.

In light of the above facts, the plaintiffs were registered as directors or auditors of the non-party company in form, and even if the non-party company actually performed the duties of directors or auditors of the non-party company, it is recognized that the non-party company provided a certain amount of labor and received a certain amount of remuneration in return for the provision of labor in the non-party company as well as the delegated duties, so the plaintiffs are workers subject to the Labor Standards Act (see, e.g., Supreme Court Decisions 96Da3037, 33044, Oct. 24, 1997; 97Da44393, Dec. 23, 1997; 97Da44393, Dec. 23, 1997). Accordingly, it is unfair to exclude the plaintiffs from the total amount of wages of the last three months months for the non-party company after March 29, 1989; 3.5.25.3 years after 1957.

3. Conclusion

Therefore, the court of auction shall change the dividend amount of KRW 214,88,244 to KRW 161,632,814 (gold KRW 214,88,244-gold KRW 53,255,430) from among the dividend table prepared as above by the court of auction, and shall correct that the amount of the total sum of the unpaid pay and retirement pay set forth in the attached list is distributed to the plaintiffs in the first order.

Judges Hwang Jong-Un (Presiding Judge)