(영문) 서울고등법원 2015.5.7. 선고 2014누70855 판결

A) On March 28, 2011, the Plaintiff worked as the head of the business team in D Co., Ltd. (hereinafter “D”) established with the business purpose of the purchase and sale, collection, etc. of claims, and retired on or around June 30, 2011, and D discontinued its business on or around June 30, 2011, and closed its business on September 8, 2011. (C) On June 15, 2012, the Plaintiff filed an application for recognition of bankruptcy, etc. under Article 5(1) of the former Enforcement Decree of the Wage Claim Act (amended by Presidential Decree No. 25630, Sept. 9, 2014; hereinafter “Enforcement Decree”).

D) On March 28, 2013, the Defendant issued a notice of non-recognition of bankruptcy, etc. (hereinafter “instant disposition”) pursuant to Article 5(1) of the Enforcement Decree of the Wage Claim Guarantee Act and Article 4 of the Enforcement Rule of the Wage Claim Guarantee Act on the grounds that the Plaintiff cannot be deemed to have carried on the pertinent business for more than six months from the date of establishment of the place of business.

E) On June 28, 2013 and the instant disposition, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission. However, the Central Administrative Appeals Commission dismissed the instant administrative appeal claim on February 11, 2014. 【Grounds for Recognition】 The Plaintiff did not dispute, Gap evidence Nos. 1 and 2, Gap evidence Nos. 3-3, Gap evidence Nos. 4, 5 (the same as Eul evidence No. 2), and 7, and the purport of the entire arguments and arguments.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) In light of the provisions and purport of the relevant Acts and subordinate statutes, such as the Wage Claim Guarantee Act, the requirement that the business owner shall conduct the relevant business for at least six months under Article 8 of the Enforcement Decree (hereinafter “business owner’s requirements”) does not meet the requirements for the payment of substitute payments and does not constitute the requirements for the recognition of the fact of bankruptcy, etc. on the premise that the payment of substitute payments is requested for at least six months. Therefore, the instant disposition made on the ground that D did not meet the business owner’s requirements for at least six

2) Even if the business owner’s requirements were not less than six months in domestic affairs, even if the business owner’s requirements constituted the requirement for recognition of the bankruptcy, etc., D is merely a mere fact that the Samsung Branch of C Co., Ltd. (hereinafter “B”) was converted into a legal entity, D’s calculation of the D’s business period should include the period during which D employed workers and operated business as a branch of B before D’s conversion into a legal entity. Accordingly, D’s disposition was unlawful on the premise that D’s business period is less than six months since it had been employed and operated as workers from October 2010 at the latest.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the assertion that the requirement for recognition of bankruptcy, etc. is not satisfied

A) In light of the following circumstances, it is reasonable to interpret that an employer under Article 7(1) of the former Wage Claim Guarantee Act (amended by Act No. 12528, Mar. 24, 2014; hereinafter referred to as the “Act”) refers to an employer who has conducted the relevant business for at least six months under Article 7(3) of the Act and Article 8 of the Enforcement Decree of the Act. Thus, where an employee files an application for recognition of bankruptcy, etc. under Article 5(1) of the Enforcement Decree to receive substitute payments under Article 7(1) of the Act, the Minister of Employment and Labor shall review whether the employer constitutes an employer who has conducted the relevant business for at least six months.

(1) The purpose of statutory interpretation is to find a concrete propriety within the extent that does not undermine legal stability. As such, in the process of statutory interpretation, it is a principle to faithfully interpret the language and text used in the law as far as possible. Furthermore, a systematic and logical interpretation method that takes into account legislative intent and purpose, history of enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes should be additionally mobilized so as to ensure a reasonable interpretation in response to the request for statutory interpretation (see Supreme Court Decision 2006Da81035, Apr. 23, 2009).

(2) Article 7(1) of the Act provides, “The Minister of Employment and Labor shall pay the unpaid wages, etc. of a retired worker on behalf of the employer, notwithstanding Article 469 of the Civil Act, if the employer files a claim for the payment of the unpaid wages, etc. to the retired worker in cases specified by Presidential Decree, such as bankruptcy.” Article 2(2) of the Act provides, “the employer refers to a person who operates a business by employing a worker,” and Article 7(3) of the Act provides, “The standards for workers and employers eligible for substitute payments shall be determined by Presidential Decree.” Article 3 of the Act provides, “This Act shall apply to businesses or places of business under Article 6 of the Industrial Accident Compensation Insurance Act: Provided, That this shall not apply to business directly conducted by the State

Therefore, the employer of a worker who is subject to substitute payment under Article 7 (1) of the Act refers to a person who operates a business or workplace under Article 6 of the Industrial Accident Compensation Insurance Act and satisfies the requirements of Article 7 (3) of the Act.

In addition, Article 8 of the Enforcement Decree provides that "a business owner who is eligible to receive substitute payments pursuant to Article 7 (3) of the Act shall be a business owner subject to the Act pursuant to Article 3 of the Act and who has a cause falling under any of the subparagraphs of Article 4 after conducting the relevant business for at least six months." Article 4 of the Enforcement Decree provides that "reasons prescribed by Presidential Decree, such as bankruptcy, etc." under Article 7 (1) of the Act means cases falling under any of the following subparagraphs: ① Declaration of bankruptcy under the Debtor Rehabilitation and Bankruptcy Act (Article 7 (1) of the Act; ② Decision to commence rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act (Article 2); ③ Decision to commence rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act (Article 5); and

In full view of the provisions of these Acts and subordinate statutes, an employer who operates a business or workplace under Article 6 of the Industrial Accident Compensation Insurance Act on behalf of the Minister of Employment and Labor shall be limited to an employer who has occurred a cause falling under any of the subparagraphs of Article 4 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act after employing workers for at least six months (Therefore, if a cause falling under Article 4 subparagraph 3 of the Enforcement Decree of the Enforcement Decree has occurred before six months have not elapsed since the commencement of the business, he/she shall not immediately discontinue the business and even if the business is discontinued after six months have not passed since the commencement of

Meanwhile, Article 5(1) of the Enforcement Decree of the Act providing the requirements and procedures for recognition of the fact of bankruptcy, etc. provides that "the Minister of Employment and Labor may recognize that the employer has no ability to pay the unpaid wages, etc. if the employer satisfies all the following requirements if the employer is retired without receiving the wages, etc. from the employer: (i) the number of regular workers calculated by the method specified in attached Table 1 is not more than 300 (No. 1); (ii) the business is discontinued or discontinued; (iii) the business is not capable of paying wages, etc.; or (iv) the payment of wages, etc. is considerably difficult (No. 3). However, recognition of the fact of bankruptcy, etc. under subparagraph 3 is a business owner eligible for substitute payment under the Act. Article 5(1) of the Enforcement Decree of the Act, which is a business owner, is not a business owner eligible for substitute payment, but a business owner eligible for substitute payment, i.e., Article 7(1) of the Enforcement Decree, and thus the relevant business owner should be subject to Article 8 of the Act.

B) In light of such legal principles, the Plaintiff filed the instant application with D as the Defendant on June 15, 2012 for the payment of unpaid wages and retirement allowances to the Defendant, as seen earlier. As such, the instant application is intended to receive a substitute payment under Article 7(1) of the Act, so the Defendant, who is delegated with the authority of the Minister of Employment and Labor to recognize the existence of bankruptcy, etc. upon the instant application, shall first examine whether D is the business owner who has conducted business for at least six months under Article 7(3) of the Act and Article 8 of the Enforcement Decree of the Act. Accordingly, this part of the Plaintiff’s assertion on a different premise is without merit.

2) Whether D business was conducted for more than six months

A) In full view of the facts acknowledged earlier, Gap evidence 3-2, Gap evidence 5 (the same as Eul evidence 2), and Gap evidence 7’s overall purport of the arguments and arguments, it is recognized that Eul established on April 21, 2010 for the purpose of purchasing and selling bonds, and conducting asset-related business, etc., the plaintiff entered Eul from May 11, 2010 and worked as the head of the business team team team team leader, part of Eul’s business division was separated, and Eul was established, and the plaintiff worked in D from March 3, 2011 with D established until June, 30, 2011 with suspension of business activities.

B) On the other hand, the facts acknowledged earlier, Gap evidence No. 4, and the overall purport of oral arguments are as follows. In other words, the plaintiff filed an application of this case with the defendant on June 15, 2012, namely, the plaintiff as the business owner, not Eul, and the plaintiff submitted a certificate of closure issued to the defendant on May 8, 2012 in order to obtain recognition of bankruptcy, etc. from the defendant, and the head of the distribution tax office submitted a certificate of closure issued to D on May 8, 2012, and the period of business of Eul is included in the calculation of the business period of D, it cannot be deemed that the plaintiff employed workers and operated business even before D was established and operated. In light of the fact that D was established on March 28, 201 in calculating the business period of D, the above facts alone are insufficient to acknowledge that D met the requirements of the business owner for more than 6 months, and there is no other evidence supporting this part of the plaintiff's assertion. Therefore, there is no reason to deem otherwise.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition