영업양도시 양도인에 관한 임금 등 근로채권의 승계 여부 (Work Bond Succession Including Wage for Transferor in Business Transfer - Limitation from the view of commercial law and finding legal alternative in labor law -)

서지정보

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· 저자명 : 박진호

초록

In Article 41 and Article 45, commercial law defines legal effect of business transfer by separating internal aspect of transferor and transferee and external aspect of transferee and creditor or debtor of transferor. But it doesn`t have rules normally recognizing comprehensive succession of rights obligations including merger and division, having shortages in protection for business creditors of transferor.
Despite this fact, work bond including wage that workers of transferor possess from existing transferor requires strong legal protection, and no one would have objections for the appropriateness. But, as there`s no clearly proven legal grounds for the appropriateness in the academy and practice. This study shows an attempt to find grounds of work bond concomitantly transferring to transferee including back pay for transferor with normal effect of business transfer.
But relying on the interpretation-approach would make continuous collision with business transfer normal principle in commercial law and remain additional issues including attribution problem in criminal liability, so, it requires approach with legislative solution in mid-long term prospect. In this case, 1) rational adjustment for joint liability of transferor and transferee and each responsibility, 2) application issue for work bond preferential payment in joint liability, 3) liability issue for debt coming to period of performance after business transfer established before the transfer, 4) issue of determining criminal liability reversion subject from overdue wage would be fully considered.
And detailed highlighting for each legal relation between 『transferor - worker - tranferee』after transferring work bond including wage has to be continuously researched in further study.

영어초록

In Article 41 and Article 45, commercial law defines legal effect of business transfer by separating internal aspect of transferor and transferee and external aspect of transferee and creditor or debtor of transferor. But it doesn`t have rules normally recognizing comprehensive succession of rights obligations including merger and division, having shortages in protection for business creditors of transferor.
Despite this fact, work bond including wage that workers of transferor possess from existing transferor requires strong legal protection, and no one would have objections for the appropriateness. But, as there`s no clearly proven legal grounds for the appropriateness in the academy and practice. This study shows an attempt to find grounds of work bond concomitantly transferring to transferee including back pay for transferor with normal effect of business transfer.
But relying on the interpretation-approach would make continuous collision with business transfer normal principle in commercial law and remain additional issues including attribution problem in criminal liability, so, it requires approach with legislative solution in mid-long term prospect. In this case, 1) rational adjustment for joint liability of transferor and transferee and each responsibility, 2) application issue for work bond preferential payment in joint liability, 3) liability issue for debt coming to period of performance after business transfer established before the transfer, 4) issue of determining criminal liability reversion subject from overdue wage would be fully considered.
And detailed highlighting for each legal relation between 『transferor - worker - tranferee』after transferring work bond including wage has to be continuously researched in further study.

참고자료

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