Dispatched workers' wage priority and the Welfare Service's subrogated claim

1. 01Question

   Where a using business employer fails without good reason to pay the consideration for a dispatch of workers, so that the dispatch agency cannot pay wages, does the dispatched worker's wage claim against that employer carry the priority right of Article 38(2) of the Labor Standards Act even if the dispatch was unlawful, and may the Korea Workers' Compensation & Welfare Service, having paid the wages and subrogated, be paid ahead of other secured creditors in an auction by exercise of a separate realization right?

2. 02Holding

   It does. Where the employer does not pay the dispatch consideration without good reason and the agency thereby cannot pay wages, the employer is jointly liable, and the dispatched worker's wage claim against it carries the priority of Article 38(2) of the Labor Standards Act against its total assets. Article 34(2) of the Dispatch of Workers Act applies even to an unlawful dispatch, because the definition of a dispatch requires neither a ground under Article 5 nor an authorisation under Article 7. Where the Korea Workers' Compensation & Welfare Service has paid and subrogated under Article 8(2) of the Wage Claim Security Act, the proviso to Article 415-2 of the Debtor Rehabilitation and Bankruptcy Act only keeps it from receiving the money directly, and the money is paid through the bankruptcy trustee.

   Summary of the holding, verbatim

   파견근로자의 사용사업주에 대한 임금채권에 관하여도 근로기준법 제38조 제2항이 정하는 최우선변제권이 인정된다고 봄이 타당하다.

   Unofficial English translation

   It is reasonable to regard the right to preferential payment prescribed in Article 38(2) of the Labor Standards Act as being recognized in respect of the wage claim of a dispatched worker against the user employer as well.

3. 03Disposition

   Partly reversed and remanded Stated in the decision

   원심판결 중 원고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 피고의 상고를 기각한다.

   Unofficial English translation

   The judgment of the court below is reversed as to the part in which the plaintiff lost, and this part of the case is remanded to the Seoul High Court. The defendant's appeal is dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   사용사업주의 파견근로자에 대한 임금지급책임을 인정하는 파견근로자 보호 등에 관한 법률(이하 ‘파견법’이라 한다) 제34조 제2항을 적용하기 위하여 당해 근로자파견이 파견법 제5조의 파견사유가 있고 제7조의 허가를 받은 파견사업주가 행하는 이른바 ‘적법한 근로자파견’에 해당하여야만 하는 것은 아니다.

   Unofficial English translation

   In order to apply Article 34(2) of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter the 'Act on the Protection, etc. of Temporary Agency Workers'), which recognizes the user employer's responsibility for payment of wages to the dispatched worker, the relevant worker dispatch need not necessarily constitute the so-called 'lawful worker dispatch' carried out by a dispatching business operator who has the grounds for dispatch under Article 5 of the Act on the Protection, etc. of Temporary Agency Workers and has obtained permission under Article 7.

5. 05Factors

   • 파견근로자의 복지증진에 관한 파견법의 입법 취지와 더불어
   • 사용사업주가 파견사업주와 연대하여 임금지급의무를 부담하는 경우 임금 지급에 관하여 사용자로 본다는 파견법 제34조 제2항 후문
   • 근로자의 최저생활을 보장하려는 근로기준법 제38조 제2항의 규정 취지를 고려하여 보면
   • 적법하지 않은 파견의 경우 파견법 제34조 제2항이 적용되지 않는다고 보면 파견법이 규정한 제한을 위반하여 근로자파견의 역무를 제공받은 사용사업주는 오히려 임금지급책임을 지지 않는 결과가 되어 법적 형평에 어긋나게 된다.
   • 근로복지공단은 별제권 행사에 따른 경매절차에서 근로자와는 달리 배당금을 직접 받을 수 없다는 뜻일 뿐, 근로복지공단이 다른 담보물권자보다 우선하여 변제받을 권리를 부정한 것이 아니다.

   Unofficial English translation

   • Together with the legislative purpose of the Act on the Protection, etc. of Temporary Agency Workers concerning the promotion of the welfare of dispatched workers,

   • the latter part of Article 34(2) of the Act on the Protection, etc. of Temporary Agency Workers, which provides that where the user employer bears the obligation to pay wages jointly and severally with the dispatching business operator, the user employer is deemed the employer with respect to the payment of wages,

   • and in consideration of the purport of the provision of Article 38(2) of the Labor Standards Act, which seeks to guarantee the minimum livelihood of employees,

   • if Article 34(2) of the Act on the Protection, etc. of Temporary Agency Workers were regarded as inapplicable in cases of unlawful dispatch, the user employer who received the services of worker dispatch in violation of the restrictions prescribed by that Act would, contrary to expectation, bear no responsibility for payment of wages, which would produce a result contrary to legal equity.

   • What is meant is merely that, in the auction procedure following the exercise of the right of separate satisfaction, the Korea Workers' Compensation and Welfare Service cannot directly receive the distributed proceeds in contrast to the employee; it is not that the right of the Korea Workers' Compensation and Welfare Service to receive payment in preference to other security interest holders has been denied.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2022. 8. 31. 선고 2019다200737 판결, 대법원 2022. 9. 29. 선고 2021다269364 판결 등 참조

   Unofficial English translation

   See Supreme Court Decision 2019Da200737 decided August 31, 2022; Supreme Court Decision 2021Da269364 decided September 29, 2022; etc.

   Decisions referred to

   [3] 대법원 2022. 8. 31. 선고 2019다200737 판결, 대법원 2022. 9. 29. 선고 2021다269364 판결

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Where the debtor has not been declared bankrupt, so that Article 415-2 does not apply, does the Korea Workers' Compensation & Welfare Service's subrogated advance-payment claim still take priority over the mortgagee in the proceeds of an auction by exercise of a separate realization right?

   The remanded judgment of the Seoul High Court on the advance-payment claim will show how the distribution is corrected in practice. Any amendment to Article 415-2 of the Debtor Rehabilitation and Bankruptcy Act or Article 8 of the Wage Claim Security Act, or a later decision departing from Supreme Court Decisions 2019Da200737 and 2021Da269364, also requires this entry to be read again.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.