사용자의 총재산에 설정된 질권 또는 저당권에 의해 담보된 채권과 근로자의 최종 3개월분의 임금채권 사이의 우열관계

Art. 38 of Labor Standards Act plays an important role in Korea, in order to secure a guarantee of minimum life of employees. Art. 38 of the Act is as follows :Art. 38 (Preferential Payment for Wages) (1) Wages, accident compensations, and other claims arising from labor relations shall be paid in preference to taxes, public charges, or other claims, except for claims secured by pledges or mortgages, on the whole property of the employer concerned. However, this shall not apply to those taxes and public charges which take precedence over pledges or mortgages. (2) Notwithstanding the provisions of paragraph (1), the claims falling under any one of the following subparagraphs shall be paid in preference to any claims secured by pledges or mortgages on the whole property of the employer, taxes, public charges, or other claims:1. The wages of the last 3 months 2. Accident compensations As a result of the above provisions, the order of reimbursement is between each claims as follows :ⓐ the wages of the last 3 months, accident compensations, and retirement benefits of the last 3 years > ⓑ taxes and public charges which shall be paid in preference to claims secured by pledges or mortgages > ⓒ claims secured by pledges or mortgages > ⓓ other claims arising from labor relations except for claims from labor relations which shall be paid primarily > ⓔ general taxes and public charges > ⓕ general claims However, in spite of Art. 38 of the Labor Standards Act, the preferential order between claims secured by pledges or mortgages on the employer's whole property and the employee's wages of the last 3 months is not always being accepted, by which conditions in each cases are added. Our Supreme Court decided in a recent case as follows : the employee's wages of the last 3 months should be paid in preference to the claims secured by pledges or mortgages on the employer's whole property, which were set up before the employer acquires the employer's position. On the other hand, it decided obviously in some previous cases, the last 3 months wages shall not be reimbursed in preference to the claims secured by pledges or mortgages, which were set up before a special succession of property by the employer. And, by that, it made clear, the claims secured by the pledges or the mortgages are in that cases prior rather than the last 3 months wages. Therefore, these will emerge as important issues, in which cases the right of preferential reimbursement of the last 3 months wages to the claims secured by pledges or mortgages are accepted or not, and why in each cases the preference is recognized or denied. In this paper dealt with this very issue.