도산절차에서 임금채권을 둘러싼 법적 쟁점

Abstract

In insolvency proceedings, creditors try to determine how, at the lowest cost, to make it more beneficial – or less costly – for the debtor to pay the money owed. Creditors look for means to enhance its leverage with the debtor in order to increase the likelihood that the debtor will repay themselves. The ranking of repayment depends on the substantive law and the Debtor Rehabilitation and Bankruptcy Act(the “Integrated Insolvency Act”). However, especially with regard to the wage claim, collisions broke out between the substantive law(the Labor Standard Act. etc., hereafter the “Labor Relations Act”) and the Integrated Insolvency Act about the top priority, hence theoretical opinions are in confrontation with each other over dividend issues. The Integrated Insolvency Act provides that the wage claim classifies into the wage for public interests in bankruptcy proceedings or foundation claim in rehabilitation proceedings in order to protect employees. However the Labor Relations Act protects the wage claim by identifying only the wage of the final three months or the retirement pay of the final three years as a top priority right. Therefore, it is necessary to translate appropriately between the Labor Relations Act and the Integrated Insolvency Act and redefine their relationships. This article discusses the conflict of the Labor Relations Act and the Integrated Insolvency Act, and then the approaches handling it in Korea. Furthermore, this article will discuss how the wage claim should be enforced under the Integrated Insolvency Act in order to assist employees in collecting the wage in insolvency proceedings effectively and suggest advanced rules and procedures for dealing with cases in relation to the wage claim.