초록 열기/닫기 버튼
Workers live based on wages paid at the cost of their labor, so wages can be said to be the basics of their and family's material life and nearly only means of living, so their protection will be the key of protecting workers. But despite of many protection provisions of wages, if the principle of general civil laws is maintained when security is executed on the employer's property or the company loses its payability due to bankruptcy or danger of bankruptcy, it will be actually impossible to secure workers' wages. Thus wage-lien is a social and political system securing the pay credit of the social weak, workers by correcting the principle of general civil laws in a certain range, repaying wage credit in priority to other holders of a security right granted by way of security if the company loses payment ability. Our country's Labor Standard Act and Law of Employment Retirement Benefit Security admit preferred repayment right to wages, retirement allowance, disaster compensation and other work related credit and the top priority right to disaster compensation such as wages of the last three months and retirement allowance of last three years. Another method to actually secure wages when a company is bankrupt, is to protect by a social insurance type, which has been developed in Europe and in our country, Wage Claim Guarantee Act was established in 1998 and has been enforced. However, the substitute payment system under our country's Wage Claim Guarantee Act has a strict payment requirement and a limited amount, so its range of social security tends to be lacking. Thus, for the public good to secure wage credit, it is proper to consolidate wage-lien. This article tries to look over the legal character, effect and system of wage-lien, analyze problems and present a theory of interpretation and a legislative reform plan from the viewpoint that the effect wage-lien should be strengthened. Wage-lien was first documented at French Civil Law and provided as a security right and in Japanese Civil Law succeeding French Civil Law, accepted that as it is and legislated it as a preferred right in its real light section and as our country's civil law was established, the lien was abolished, but the intent of legislation was to admit a lien individually without negating the purpose though the lien was abolished, so our country's wage-lien has a security right character historically. Also wage-lien has a preferred right, the substantial effect of security right, a preferred repayment right, so it should be seen as a security right. Our country's theories and Supreme Court's precedent consistently accept the legal character of wage-lien as security right. However, Supreme Court's precedent accepts it as a security right and passively sees the effect of security right, but does not accept claim auction or overtaking effect based on wage-lien. If the security right character of wage-lien is accepted, the substance of security right is to dominate its exchange value and the essential function is to convert the security object into money and get repaid in priority over other creditors, so if there is no statutory provision, claim auction and overtaking effect should be admitted. Realistically, workers are difficult to file a civil litigation against the employer based on age credit regardless of after or before retirement and acquire execution title, so it is valid to accept claim auction based on wage-lien. However, Supreme Court's precedent stands in a situation that if wage-lien is a security right, claim auction and overtaking effect cannot be accepted, so it is necessary to legislate claim auction based on wage-lien. As above, this article looked over the legal character, problems over wage-lien as a core system to protect workers' wages and presented a theory of interpretation and a theory of legislation from the viewpoint that its effectiveness be ensured.
키워드열기/닫기 버튼
wage-lien, lien, substitute payment, statutory security right, overtaking effect, the right to claim auction, bankruptcy procedures
