체당금 수령을 위해 도산등사실 불인정처분 취소소송을 할 때 영업양도가 쟁점인 경우 해결방안 및 입법제언- 서울고등법원 2015. 3. 6. 선고 2014누42300 판결을 중심으로

Abstract

In case where transfer of business involving an existing company and a newly established company is an issue in a suit seeking revocation or adjudication of revocation of a disposition disapproving bankruptcy by a regional employment and labor office, the courts have handed down judgment to the effect of acknowledging bankruptcy and ordering substitute payments to employees if transfer of business is deemed unclear (see Seoul High Court Decision 2014Nu42300, Mar. 6, 2015). In the Seoul High Court Decision supra, the Court: (a) carefully examined as to whether transfer of business actually took place; (b) subsequently, deemed that the head of the regional employment and labor office had the duty of substitute payment only if there was an objective reason where employees could not receive unpaid wages under the Wage Claim Guarantee Act; and (c) in so doing, achieved the intended purpose of said Act, i.e., contribute to ensuring a certain level of life stability of workers and prevent moral hazard related to claim of substitute payment. If the disposition disapproving an existing company’s bankruptcy were revoked and workers accordingly received substitute payment, the Korea Labor Welfare Corporation (KLWC) charges the existing company for payment thereof, but payment is not possible as said company shut down. In such case, the substitute payment can only be appropriated through a wage claim guarantee fund. However, the fund may be exhausted if the amount appropriated increases, thereby imposing heavier debt burden on business owners over the long run as well as causing wage-dampening effects, which clearly goes against the intended purpose of the Wage Claim Guarantee Act. As to the case described above, the Central Administrative Appeals Commission (CAAC) should carefully review whether a comprehensive transfer of business occurred. Going forward, the provision on transfer of business should be inserted under Article 5(1)2 of the Wage Claim Guarantee Act for reference in trial proceedings.