[Plaintiff, Appellee] Daehan Mutual Savings & Finance Co., Ltd., Attorneys Shim Hun-jong and 4 others, Counsel for the Plaintiff
[Defendant, Appellant]
[Judgment Below] Seoul High Court Decision 92Na63469 rendered on May 20, 1993
[Order]
All appeals are dismissed.
The costs of appeal shall be borne by the Defendants.
[Reasoning]
The grounds of appeal are examined.
1. The gist of the reasoning of the judgment below is as follows.
A. The Plaintiff completed registration of a mortgage (root mortgage, 근저당권) on the real estate at issue in this case, owned by non-party 1, with non-party 1 as the obligor, and lent money to him. Thereafter, non-party 1 sold the real estate at issue to non-party 2, and registration of transfer of ownership was completed. While the Plaintiff filed an application for a voluntary auction with respect to the real estate at issue and the auction was in progress, the Defendants asserted that they had the right to be paid in preference for their wage claims for the last three months against non-party 2 pursuant to Article 30-2(2) of the Labor Standards Act (근로기준법), and filed an application for a compulsory auction with respect to the real estate at issue based on a notarial deed against non-party 2, resulting in a duplicate auction application. In the distribution procedure, the auction court prepared a distribution schedule allocating, out of the successful bid price of 418,000,000 won for the real estate at issue, after deducting execution costs, the actual distributable amount of 407,691,420 won, the full amount of 52,563,790 won of wage claims to the Defendants, and the remaining 355,127,630 won to the Plaintiff.
B. Since the provisions of Article 30-2 of the Labor Standards Act should be applied based on the relationship between the person who establishes the root mortgage and the root mortgagee, with reference to the wage obligations of the person establishing the mortgage, even if the Defendants, as employees of non-party 2, who acquired the real estate at issue after the establishment of the said root mortgage, hold the wage claims at issue against non-party 2, this cannot take precedence over the Plaintiff's claim under the root mortgage of this case secured against non-party 1.
C. It is recognized that non-party 1, who had been operating ○○ Company where the Defendants worked, filed a nominal report of business closure when it went bankrupt, newly registered a business under the name of his younger brother, non-party 3, changing the trade name to △△ Industry, and then again changed the name of the business registration to that of non-party 2, who was then the sales manager, but that non-party 1 continued to actually operate the said business. However, there is no evidence to recognize that the registration of transfer of ownership under the name of non-party 2 with respect to the real estate at issue was made in order to guarantee the employees' wage claims, etc. Moreover, since the Defendants' application for the compulsory auction at issue was originally based on a notarial deed against non-party 2, premised on the real estate at issue being owned by non-party 2, if the Defendants' wage claims are against non-party 1, they cannot receive distribution of such wage claims from the proceeds of the auction of the real estate at issue owned by non-party 2.
D. Therefore, it was erroneous in the distribution procedure of this case to recognize the Defendants' priority right to repayment over the Plaintiff's root mortgage claim with respect to the Defendants' wage claims and to distribute to the Defendants in preference, and the amount of 52,563,790 won recorded in the distribution schedule as to be distributed to the Defendants should all be distributed to the Plaintiff. Accordingly, the Plaintiff's claim in this case seeking to correct the distribution schedule so that the amount to be distributed to the Plaintiff, recorded as 355,127,630 won, be corrected to 407,691,420 won (355,127,630 won + 52,563,790 won), and to delete the amount to be distributed to the Defendants recorded as 52,563,790 won, is well-founded.
2. Pursuant to the provisions of Article 30-2(2) of the Labor Standards Act, "Wages for the last three months, retirement allowances, and accident compensation of a worker shall be paid in preference to claims secured by a pledge or mortgage on the total property of the employer, taxes, public charges, and other claims." This provision, in light of the public interest requirement of guaranteeing the minimum living of workers, partially restricts the effect of general security rights and provides for the priority repayment right of wage claims. The purport of this provision is merely to clarify that claims relating to wages, etc. for the last three months have the right to be paid in preference, regardless of the order of establishment or whether a pledge or mortgage has been created, when such claims compete with other claims to be paid from the same property of the employer at the same time; it does not go so far as to recognize a right of pursuit (추급효), the essence of which is exclusive control over specific property of the employer. Therefore, in a case where the employer's property has been transferred to a third party, the priority of the claim for wages, etc. against the transferor employer can no longer be pursued with respect to that property, and priority cannot be recognized with respect to the property acquired by the transferee. Furthermore, priority cannot be recognized with respect to security rights established before the employer acquired the property.
Accordingly, although the judgment below's determination as stated above is somewhat insufficient in its expression, its conclusion that the Defendants' wage claims cannot take precedence over the Plaintiff's root mortgage on the real estate at issue is justified, and therefore it cannot be said that there is an error of misunderstanding the legal principles concerning the priority effect of workers' wage claims, etc., as argued in the grounds of appeal.
3. Furthermore, according to the record, the measure of the court below in not recognizing the Defendants' assertion that the registration of transfer of ownership under the name of non-party 2 with respect to the real estate at issue was made in order to guarantee the employees' wage claims can be affirmed, and it cannot be said that there is an error in violation of the rules of evidence. Even assuming, as argued in the grounds of appeal, that the transfer registration under the name of non-party 2 was made as a means of guaranteeing the Defendants' wage claims, since the auction procedure proceeded on the premise that the real estate at issue is owned by non-party 2 and that the Defendants are creditors of non-party 2, the Defendants cannot, in the distribution objection lawsuit procedure, the purpose of which is to resolve the dispute over the distribution amount between the opposing creditors, the Plaintiff and the Defendants, deny the registration of transfer of ownership under the name of non-party 2 and assert priority for their wage claims, etc. on the premise that the real estate at issue is substantially owned by non-party 1 and that the Defendants are creditors of non-party 1.
Therefore, all the grounds of appeal are without merit.
Accordingly, all appeals are dismissed, and the costs of appeal are to be borne by the losing parties. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Bae Man-woon (Justice in charge), Kim Ju-han, Jeong Gwi-ho