(영문) 서울행정법원 2014.9.4. 선고 2014구합8766 판결

1. The Defendant’s disposition that the Plaintiff rendered to the Plaintiff on February 22, 2013 is revoked as to the Plaintiff’s failure to verify the payment of substitute payment.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On December 10, 2010, the Plaintiff entered the C&A corporation (hereinafter “Co., Ltd.”) as of December 10, 201 and served as an instructor of the C&A, and retired on December 10, 201.

B. B was declared bankrupt by the Seoul Central District Court on March 6, 2012. The Plaintiff filed an application for substitute payment with the Defendant on October 201 and November 2012 on the ground that the requirements for the substitute payment were not satisfied (hereinafter “instant disposition”). On February 22, 2013, the Defendant notified the Defendant that the requirements for the substitute payment were not satisfied (hereinafter “instant disposition”).

D. Accordingly, on March 28, 2013, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on January 21, 2014.

【Facts without dispute over the basis of recognition, entries in Gap evidence 1 through 7 (including branch numbers for those with a branch number) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

The Defendant issued the instant disposition on the ground that it is difficult for the Plaintiff to be deemed as the actual business owner, but the Plaintiff worked as an instructor of CResearch Institute, a branch of B, and received benefits from B, and the Plaintiff is deemed as the Plaintiff’s business owner. Therefore, the instant disposition is unlawful.

(2) Summary of the defendant's assertion

B is only a company that exists in a nominal form, and as the Dispute Resolution D or the Dispute Resolution E is a substantial business owner depending on the substance of labor relations, it is reasonable to pay the plaintiff's application for substitute payment with B as the business owner.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

(1) On November 4, 2009, a private teaching institute business, and a company established for the purpose of providing online education information, etc., which is located in Incheon, operated the C&A, F.F., G., H., H., and private teaching institutes. (2) The K.A.D. is a company that has a company operating a private teaching institute in a national zone as its subsidiary and owns 51% of the stocks of B-based stocks that operate the Incheon regional private teaching institute, and was merged into the K.A.B. on December 5, 201.

(3) On December 2012, the Seoul Central District Court filed a petition for bankruptcy with respect to the debtor B in the Seoul Central District Court, and on March 6, 2012, the Seoul Central District Court declared bankruptcy with respect to the AB and appointed attorney J as a trustee in bankruptcy.

(4) The bankruptcy trustee of the bankrupt B shall classify the wages in arrears of about 80 workers including the plaintiff as estate claims which take precedence over the general bankruptcy claims, and set the amount equivalent to 5-10% of the amount of the claim as the estimated amount of dividends.

(5) On December 2010, the Plaintiff was paid the benefits from the KCITRA or its branch office until December 201, 201, after becoming a member of the KCITRA.

(6) On February 6, 2014, K, which was the representative director of the LABD, was convicted of the violation of the Labor Standards Act, etc. against the employees of the above private teaching institute, on the ground that K is the representative director of the LABD's KAB and the representative director of the KAB's KAB's KAB's LAB's LAB's LAB's LAB's LAB's LAD's LAB's LAD's LAB's LAD's LAD's LAD's LAB's LAD's LAD's LAD's LAD's LAD's LA and K's LA'

(7) On February 6, 2014, L, a representative director of the L, a L, is convicted of violating the Labor Standards Act, etc. as to the unpaid wages of the employees of the above private teaching institute on the ground that “L, in the case of violation of the Labor Standards Act of Seoul Central District Court 2013Da2915, and violation of the Workers’ Retirement Benefits Guarantee Act, L, in the course of the merger and consolidation of the L, the L, in which the L, which is a representative director of the L, was a representative director of the L, was an acting representative director of the L, and the L, in which the L, in the process of the merger and consolidation of the L, the L, in which the L, which is the L, was operating the L,

【Fact-finding, Gap’s 1 through 3, 8, Eul’s 1 through 3 (including branch numbers, if any) and the purport of the whole pleadings

D. Determination

We examine whether the merger D or E is the plaintiff's "business owner".

(1) The term "business owner" under the Wage Claim Guarantee Act includes a person who employs a worker and engages in a business (Article 2 of the Wage Claim Guarantee Act), a party to a labor contract, an individual in a private company, a corporation itself in the case of a corporation. On the other hand, the term "employer" under the Labor Standards Act includes a business owner, a person in charge of business management, and other persons who act for a business owner on behalf of a business owner (Article 2 of the Labor Standards Act), a person who is responsible for business management, and a person who is not only a representative director of a corporation but also a representative director of a corporation, etc.

(2) As seen earlier, even if the representative director of the Dispute Resolution Co., Ltd or the merger of this company was in charge of operating the business of the Dispute Resolution Co., Ltd., and was deemed to be a "user" under the Labor Standards Act and punished as a violation of the Labor Standards Act, it cannot be concluded that D or E, which merged this company, is a "Plaintiff" under the Wage Claim Guarantee Act.

(3) Meanwhile, in light of the circumstances such as ① A and D and the merger of this company are companies with separate corporate personality, and the above criminal judgment is not judged to be denied by the state or the merger of this company, and there is no data to the extent of denying the corporate personality, and there is no other data to the extent that B and the merger of this company is difficult to be regarded as one company, ② C and the Plaintiff is the branch of the B and the Plaintiff is paid wages from the private teaching institute which is the branch of the above company, ③ the trustee in bankruptcy of the B and the plaintiff is the employee of the B and decided to pay dividends to the general bankruptcy creditors. Accordingly, the plaintiff's "business owner" is illegal in this case's disposition based on the premise that the plaintiff's "business owner" is not a "B" corporation.

3. Conclusion

Therefore, the claim of this case is reasonable, and it is decided as per Disposition.