회생절차폐지 결정이 있는 경우의 임금채권보장법의 개선방안

Abstract

Wage is the most important working condition for workers and a basic life resource for workers and their family. For that reason, in order to guarantee wage claim of workers who resigned from a bankrupt company and contribute to their living expenses, the government enacted Wage Claim Guarantee Act and began to enforce Wage Claim Guarantee System which provides the unpaid wage and severance pay to workers. According to the Wage Claim Guarantee System of the current Wage Claim Guarantee Act, if an employer whose business was registered for the occupational health and safety insurance, did not pay wage, etc., to a resigned worker due to bankruptcy, the resigned employee can be confirmed of the reason for substitute payment from the head of the regional employment and labor administration, and claims substitute payment, the government makes payment for the unpaid wage within a certain limit from the wage claim guarantee fund and, later, claims the payment of wage to the employer. And, the reasons for providing substitute payment includes declaration of bankruptcy according to Debtor Rehabilitation and Bankruptcy Act, or decision to commence rehabilitation procedures, and fact-finding including bankruptcy by the regional employment and labor administration. However, the current Wage Claim Guarantee Act, while stipulating decision to commence rehabilitation procedures as a reason to provide substitute payment, does not mention the decision to discontinue rehabilitation procedures. Even in the difference in debt liquidation procedure between the decision to commence and the decision to discontinue rehabilitation procedures according to Debtor Rehabilitation and Bankruptcy Act, there is no clear rationale why Wage Claim Guarantee Act only the decision to commence stipulates rehabilitation procedures as a reason for substitute payment. Regarding this issue, the government has made a rather vague guideline that “the decision to discontinue rehabilitation procedures terminates the reason for substitute payment as the court discontinues the procedure without rehabilitation procedures achieving their goals,” and refuses to provide substitute payment to a worker who applied for the payment after decision of discontinuation, whereas those who applied before discontinuation of rehabilitation procedures is provided with the substitute payment. It means that, after decision of discontinuation of rehabilitation procedures, the worker is supposed to receive substitute payment through fact-finding including bankruptcy. However, application for fact-finding including bankruptcy must be done within 1 year from the following day of the day when the worker resigned from the company, and, after this period, if there is discontinuation of rehabilitation procedures, the worker cannot apply for fact-finding including bankruptcy. Therefore, this paper proposes that when discontinuation of rehabilitation procedures is decided, those who apply for fact-finding including bankruptcy should be given additional period of three months from the date when the discontinuation of rehabilitation procedures is confirmed’ in addition to ‘within 1 year from the following day of the date of resignation.’If the proposed additional period is enacted and workers can be provided with substitute payment by applying for fact-finding including bankruptcy after discontinuation of rehabilitation procedures, it will improve equity among workers and preserve their right to substitute payment after the company’s bankruptcy.