[1] Whether the burden of proof exists in a lawsuit of demurrer against distribution

[2] The scope of wage claims recognized as preferential payment right under Article 30-2 (2) of the former Labor Standards Act

[1] In a lawsuit of demurrer against distribution, the plaintiff does not assert or prove the facts constituting the grounds for objection against distribution, so the creditor who filed an objection against distribution by asserting that the other party's claim is disguised, bears the burden of proof as to such claim.

[2] The scope of wage claims protected by the provisions of the preferential rights on wages for the last three months of workers under Article 30-2 (2) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) refers to the period of retirement and the wages for the last three months which have not been paid by the employer. It does not necessarily mean the purpose of protecting only wage claims of retired workers within three months retroactively from the date of the employer’s discontinuation of business, such as bankruptcy, etc.

[1] Articles 261 and 659 of the Civil Procedure Act / [2] Article 30-2 (2) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 37 (2) of the Labor Standards Act)

[2] Supreme Court Decision 95Da48650 delivered on February 23, 1996 (Gong1996Sang, 1065)

Industrial Bank of Korea (Law Firm Shin & Yang, Attorney Kang Jae-hoon, Counsel for defendant-appellant)

Defendant (Appointed Party)

Seoul High Court Decision 97Na11478 delivered on June 11, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

In a lawsuit of demurrer against distribution, the plaintiff does not assert or prove the facts constituting the grounds for objection, so the creditor who filed an objection against distribution by asserting that the other party's claim is disguised, shall bear the burden of proof. Therefore, the judgment of the court of first instance which the court below rendered on the premise that the defendant (appointed party) and the designated party (hereinafter the defendant et al.) have the burden of proof as to the plaintiff's argument that the wage claim in this case is the most favorable claim, shall be justified in accordance with the above legal principles, and there are no errors in the misapprehension of legal principles as to the burden of proof in the lawsuit of demurrer against distribution. The argument in the grounds of appeal as to this point is without merit.

2. On the third ground for appeal

According to the reasoning of the judgment below, the court below dismissed the claim of the plaintiff 2 on the ground that the non-party 4 was the same as the above non-party 5 company's claim for the amount of dividends on the ground that the non-party 3 company's 6th m39m2 and the above ground m354m2 on February 8, 1994, which is owned by the non-party 4 company (the non-party 4 company's address omitted), and the mortgage owner is the non-party 3 company's 1,300,000 won, and the mortgage establishment registration was completed on the non-party 4 company's 7th m27th m27th m27th 1995 with the above claim of the non-party 4 company's total amount of dividends on the ground that the non-party 4 company's claim was not the same as the above 97th m27th m27th m27th 196.

However, the plaintiff asserted that the claim for distribution, such as the wage for June and July 1996, which the defendant et al. demanded a distribution, was extinguished as a preparatory document dated May 6, 1997 (see, e.g., Supreme Court Decision 143 pages). The court below erred in failing to make any judgment thereon, despite having to make any judgment thereon, and it is obvious that such illegality affected the conclusion of the judgment. Thus, the argument in the grounds of appeal pointing this out is with merit (if it is obvious that the scope of the claim for distribution, which is protected by the provisions of the preferential right on the wage for the last three months of the workers stipulated in Article 30-2 (2) of the former Labor Standards Act, refers to the wage for the last three months of the retirement period, and if the defendant et al. demand the payment from the employer, such as the employer's bankruptcy, etc., the court below should not be deemed to have collected only the wage claim for the non-party 1 to 3 months retroactively from the time of the closure of the business (see, e.g., Supreme Court Decision 95Da169601, etc.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeong Jong-ho (Presiding Justice)