2012Guhap1919 Revocation of revocation of recognition of bankruptcy, etc.

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53.BA

The Director General of the Daejeon Regional Employment and Labor Office

November 22, 2012

January 10, 2013

1. Of the instant lawsuit, the part of the Defendant’s claim for the revocation of non-recognition of bankruptcy, etc. against the Plaintiffs other than Plaintiff B on November 2011 shall be dismissed.

2. The Defendant’s disposition of non-recognition of bankruptcy, etc. against Plaintiff B on October 11, 2011 is revoked. 3. Of the litigation costs, 1/10 is borne by the Plaintiffs, and the remainder is borne by the Defendant, respectively.

On October 11, 2011, the defendant revoked the disposition of non-recognition of bankruptcy, etc. against the plaintiffs.

1. Details of the disposition;

A. The plaintiffs were retired from their service in BB Co., Ltd. (hereinafter "the company of this case") and did not receive retirement allowances from the company of this case.

B. On July 27, 2011, Plaintiff B abolished the instant company’s business, and applied for recognition of bankruptcy, etc. in relation to the instant company pursuant to Article 7 of the Wage Claim Guarantee Act (hereinafter “the Act”) and Article 5 of the Enforcement Decree of the Act on the ground that the instant company has no ability to pay wages, etc. Accordingly, on October 11, 2011, the Defendant issued a disposition of non-recognition of bankruptcy, etc. (hereinafter “instant disposition”) on the ground that the amount of delayed payment of 55 employees in arrears against Plaintiff B was KRW 168,828,01, or KRW 174,590,000 for the instant company’s assets before and after the bankruptcy was confirmed to be KRW 174,590,00, and thus, it cannot be deemed that the instant company has no ability to pay wages, etc. or is significantly difficult to pay them.

[Ground of recognition] The fact that there is no dispute, Gap's evidence No. 1, Gap's evidence No. 2, and the purport of whole pleading

2. Of the instant lawsuit, whether the part of the Defendant’s claim for the revocation of non-recognition of bankruptcy, etc. against the remaining Plaintiffs except the Plaintiff B is legitimate

As to the legitimacy of the part of the lawsuit of this case for which the defendant claims revocation of non-recognition of bankruptcy, etc. against the remaining plaintiffs except the plaintiff B, the part for which the plaintiffs claimed revocation of non-recognition of bankruptcy, etc. is unlawful on the ground that there is no evidence to acknowledge that the plaintiffs except the plaintiff B applied for recognition of bankruptcy, etc. to the defendant, or that the defendant made a non-recognition of the application.

3. Judgment on the merits

A. Summary of the plaintiffs' assertion

Although the amount of retirement allowances payable to the plaintiffs, etc. of the company of this case exceeds 168,828,017 won in total, the company of this case is merely 8,550,000 won as lease deposit for the office of headquarters office, and it is clear that the company of this case has no ability to pay wages, etc. or at least it is considerably difficult to pay wages, etc. However, the defendant issued the disposition of this case on the ground that the company of this case reached 174,590,000 won on the ground of a vague doubt that the company of this case paid false or most debts, etc.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Around September 25, 2006, the instant company established around 2006, had its head office in Cheongju-gu BC second floor and had approximately 105 full-time workers, including the plaintiffs, engaged in the production contract, etc., employing approximately 105 full-time workers, including the plaintiffs. A representative in his name is BD, but the actual operator was BE, who was the children of BD.

2) However, around March 18, 2011, the instant company, a major contracting company, was notified by E.S. Microa Korea of the termination of the contract, making it difficult for E.S. company to run its business any longer.

3) From October 1, 2007 to March 31, 201, Plaintiff B served in the instant company and retired from office on or around April 1, 201, and the remaining Plaintiffs except Plaintiff B were also retired from the instant company around that time. The instant company discontinued its business on or around May 31, 201, and 55 employees (including Plaintiff 53, BF, and BG) of the instant company, including the Plaintiffs, reached KRW 158,828,017 in total (the first unpaid retirement allowance was the total amount of KRW 168,828,017, but the Plaintiff, the actual operator of the instant company, paid KRW 500,000 in each of the retirement allowances under the name of BF and BG around May 31, 2011).

4) At the time of the application for the recognition of the Plaintiff B’s bankruptcy, etc., BE was kept with the return of KRW 8,550,000 as to the office of the instant company’s head office, and otherwise, the instant company was in custody.

There was no nominal asset.

5) Meanwhile, BE used the instant company’s funds to BH on April 5, 201, and paid KRW 30,000,000 to BI on April 8, 201, and KRW 40,000 to BI on April 25, 201; ② on April 25, 201, it changed the leased automobile in the name of the instant company into BD individual’s name (this amounted to KRW 86,040,000 in total of the leased deposit repayment claim was transferred to BD), ③ around May 20, 201, it was difficult for BF and BG to use the company’s funds to receive KRW 5,00,000 for each of the instant funds as retirement allowance of KRW 00 from 00 to 00,000 for the purpose of 00,000 for the purpose of 00,0000 for each of the instant funds to BF and BG’s head offices.

7) However, in addition to the above amount of KRW 8,50,000, the Defendant: (a) in the case of KRW 70,00,000,00 paid out for the repayment of the borrowed loan to BH and B; (b) as long as there is no objective evidence to acknowledge the relationship between the instant company and BH and BI, it is difficult to view the instant company’s assets as normal repayment; and (c) in the case of KRW 86,040,00,000, in the case of the total amount of the claim for the repayment of the automobile lease deposit transferred to BD as payment in kind, it is difficult to view the instant company’s assets as normal repayment; and (d) in the case of KRW 10,00,00,000,00 paid for the total amount of KRW 174,590,000,000 (8,500,0000 + KRW 70,000,0000,000.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 to Eul evidence 18, Eul evidence 20-1 and 20-1 and the purport of the whole pleadings

D. Determination

1) Article 7(1) of the Act and Article 4 of the Enforcement Decree of the Act stipulate that when an employer has obtained recognition of the fact of bankruptcy, etc. under Article 5 of the Enforcement Decree of the Act, if a retired worker claims the payment of unpaid wages, etc. on behalf of the employer, the Minister of Employment and Labor shall pay the unpaid wages, etc. on behalf of the employer. Article 5(1) of the Enforcement Decree of the Act provides that the number of regular workers shall not exceed 300 ( Subparagraph 1), the business is discontinued or discontinued, or the business is considerably difficult to pay wages, etc. ( Subparagraph 2).

On the other hand, an appeal seeking the revocation of an administrative disposition has the burden of proving the legitimacy of the pertinent disposition against the Defendant, who is the disposition agency claiming the lawfulness thereof (see, e.g., Supreme Court Decision 2006Du12937, Jan. 12, 2007).

2) In the instant case, as seen earlier, the instant company is a company with not more than 300 regular workers, whose business has already been discontinued at the time of applying for recognition of bankruptcy, etc., so it is clear that Plaintiff B meets the requirements under Article 5(1)1 and 2 of the Enforcement Decree of the Act. However, the issue is whether the instant company falls under the requirement under Article 5(1)3 of the Enforcement Decree of the Act, i.e., where there is no ability to pay wages, etc. or where it is considerably difficult to pay wages,

However, the facts acknowledged above can be comprehensively considered in light of the purport of the entire pleadings, i.e., the following circumstances, i., ① the sum of KRW 70,000,000,000 paid by BE to BH and BI as loan repayment, and KRW 86,040,00,00,000,00,00,000, which were transferred under the name of payment in kind, cannot be viewed as normal payment in kind or payment in kind. However, the defendant is merely just on the side of the presumption as above, and the defendant did not prove the payment in kind or transfer, and even if it does not fall under normal payment in kind or payment in kind as the defendant was inferred by the defendant

In light of the fact that the company's assets cannot be included in the company's assets unless there are special circumstances to deny the validity of the payment of retirement allowances of 10,00,000 won paid by BF and BG out of the company's funds (However, the company's unpaid retirement allowances amounting to 168,828,017, which was reduced to 158,828,017, which was reduced to 158,828,017), etc., it is difficult to view that the company in this case has the ability to pay wages, etc., or there is no other evidence to acknowledge otherwise. Rather, the company in this case does not have any other evidence to acknowledge that the company in this case's remaining retirement allowances amount to 158,828,017, as well as the above 8,550,000,000 won, which is kept by BE, and thus, it is difficult to pay the above retirement allowances amount.

3) Ultimately, the instant company satisfies all the requirements for recognition of bankruptcy, etc. under Article 5(1) of the Enforcement Decree of the Act, and thus, the instant disposition by the Defendant on a different premise is unlawful.

4. Conclusion

Therefore, among the instant lawsuits, the part of the claim by the plaintiffs against the remaining plaintiffs except the plaintiff B on October 11, 201 is dismissed as the part of the claim by the plaintiffs for the cancellation of non-recognition of bankruptcy, etc., and the defendant's claim against the plaintiff B on October 11, 201 for the cancellation of the instant disposition against the plaintiff B is justified, and it is so decided as per Disposition.

Chief Judge of the Supreme Court

Judges Lee Jae-min

Judge Lee Young-soo

A person shall be appointed.

A person shall be appointed.