Yeongdeungpo-gu Seoul Metropolitan Government Yeongdeungpo-dong 2 94 - 267

Jung-gu Seoul Central District Court 60 - 1 extreme building 19 floors

Ministry of Labor and Welfare;

Representative President Kim Won-won

Litigation Performers Kim Min-young

2. The costs of lawsuit are assessed against the defendant.

A. The plaintiff suffered injury on January 26, 2006, when the non-party company, who is Kwikset Service Delivery Company, for delivery of delivery articles: on January 26, 2006, the plaintiff applied for medical care to the defendant, on the ground that the plaintiff was faced with the seat bus from the border ginseng located in Yeongdeungpo-gu Seoul Metropolitan Government, Yeongdeungpo-gu, on the ground that the accident was shocked by the seat bus.

B. On March 8, 2006, the Defendant rendered the instant disposition rejecting the Plaintiff’s application for medical care on the ground that: (a) the non-party company is less than one regular employee; (b) the non-party company constitutes a place of business exempt from industrial accident compensation insurance under the proviso of Article 5 of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373, Apr. 11, 2007) and Article 3(1)5 of the Enforcement Decree of the same Act.

[Grounds for Recognition] Unsatisfy, Eul 1, 2, 9

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff, while serving as the delivery service provider at around 08:0, at the order of the business owner A, worked for the delivery service provider at the first place in the office, and received orders from the service provider or collected goods from the main transaction office, and then received specific orders from A to deliver them from individual decisions and frequently reported the delivery situation. A also received orders from the delivery service provider at once, and even after the expiration of the period, the Plaintiff did not receive remuneration from the delivery service provider at the time of receiving orders from the delivery service provider at the time of receiving orders from the delivery service provider. In light of the fact that the Plaintiff and the Plaintiff did not receive remuneration from the delivery service provider at the time of receiving orders from the delivery service provider at the time of receiving orders from the delivery service provider at the time of receiving orders from the delivery service provider, and thus, the Plaintiff did not receive remuneration from the delivery service provider at the time of receiving orders from the above service provider at the time of receiving orders from the delivery service provider at the time of the Plaintiff’s free leave of absence.

(b) Facts of recognition;

(1) The non-party company is the Kwikset Service Delivery Company whose office was originally operated from August 16, 2005 in Geumcheon-gu Seoul Metropolitan Government Phodong - The Kwikset Service Delivery Company was operated on January 2, 2006. Meanwhile, the plaintiff was enrolled in another company during the night hours from October 2005 to December 31, 2005 and began to work only as a delivery agent for the non-party company's Okset Service. < Amended by Act No. 7873, Dec. 31, 2006>

(2) A, while operating the non-party company, ordered the delivery of goods from the delivery clients at the time of the call of the delivery, and had been engaged in the home delivery business in the way of receiving a certain amount of fee from the delivery service fees received by the delivery service provider. The non-party company did not have any other office employees than the delivery service provider of 6 to 7 persons including the Plaintiff. However, in order for the former business operator to help the delivery and transfer of the non-party company's OO's son B, who is the former business owner, to work in the office until February 28, 2006, and had been employed without pay.

(3) The plaintiff et al. are waiting for delivery service providers to work at the office, and assigned the delivery service from A according to the order of their attendance, and performed the delivery service. The Gap did not arbitrarily change the order of delivery according to the above work order. However, it was determined entirely by A as to what delivery is assigned to delivery service providers, i.e., whether the delivery service is assigned or not, the delivery service quantity (number).

(4) Although the Plaintiff et al. did not set working hours and working days, they ordinarily worked between 00 to 10:00, on Saturdays, and they worked for the delivery company by agreement between A and the delivery company, and on Sundays, they worked for the delivery company. However, up to 08:30, and the office door was opened to the Plaintiff and C, and up to 08:0 and the office door was opened to the Non-Party 1 and the non-Party 1 had the delivery company collected the delivery goods from the non-party 1 to 10:0 on a specific daily day, and around 0:0 to 190 on a fixed daily day, the Plaintiff and the non-party 1 were to work for the delivery company to collect the delivery goods, and the delivery company was to work for the non-party 1 to 3:0 on a specific daily day, and the delivery company was to work for the Plaintiff and the non-party 1 to 19:0 on a fixed shipping company at the latest, but to work for 0:0 on a different order.

(5) The Plaintiff et al. did not receive any particular interference from A while waiting at the office due to the lack of delivery order, and there was no obligation to report the situation of delay of delivery, etc. during the delivery. After completing the delivery service, the Plaintiff et al. notified the Plaintiff et al. that they will leave the office at the site of the office and immediately leave the office. However, in a case where the delivery cannot be carried out due to bad weather such as rain or snow, etc., the Plaintiff et al. provided that they had to deliver the goods using public transportation such as buses, subways, etc.

(6) On the other hand, A did not prepare an employment contract or set up rules of employment, service rules, etc. with the delivery engineers including the Plaintiff, etc., and therefore, there was no prescribed sanctions even if the delivery engineers including the Plaintiff did not leave the office or comply with the delivery instruction, etc., but there were no delivery engineers including the Plaintiff, etc.

A was almost little to follow A’s instructions.

(7) The plaintiff et al. paid the delivery fee to A under the fee for 15% of the total amount of the fee, and the remaining amount of the delivery fee to A was its own revenue. In the case of credit transactions, since A paid the delivery fee to the non-party's enterprise several weeks or one month, the delivery fee was calculated by adding up the delivery number to the delivery service provider by electronic means, such as the frequency of delivery, delivery place, delivery fee, etc., and once a week, A paid the remainder after deducting 15% of the total amount of the above delivery fee to the delivery service provider. However, as the office operation was difficult in the above way, A paid the delivery service charge to the delivery service provider for more than 60,000 won per share, regardless of the meaning of the "day's work payment for the delivery service provider from January 15, 2006", and paid the delivery service charge for more than 70,000 won per share.

(8) Both the Plaintiff and the delivery service provider own the goods themselves or own prepared by them for their delivery services, and all of their oil expenses, repair expenses, etc. were borne and managed by them, and the delivery service provider, including the Plaintiff, did not bear the above costs. Moreover, the delivery service provider, including the Plaintiff, calculated the cost of delivery into their own money.

(9) The Plaintiff, etc. and delivery service providers did not pay the remainder of the fee or daily fee, or coophone, out of the delivery fees as above, and did not receive a separate fixed pay from A. And A did not withhold the labor income tax from the delivery service providers, including the Plaintiff, and there was no subscription to employment insurance, industrial accident compensation insurance, national health insurance, national pension, etc. for the delivery service.

[Ground of recognition] The facts without dispute, Gap 1, 2, Eul 3-2, 5, 7, 8, witness C, A, the plaintiff himself/herself (part of these evidences), and the purport of the whole pleadings

C. Determination

(1) Whether the plaintiff is an employee or not

The issue of whether an employee is a worker under the Labor Standards Act shall be determined depending on whether the employee provided his/her work in a subordinate relationship with an employer for the purpose of running his/her business or workplace. In determining whether there is a subordinate relationship, the content of his/her work shall be determined by the employer, whether the employee is subject to specific command and supervision from the employer in the process of non-performance of work, whether the employer is designated working hours and work place by the employer, whether the employee is subject to detention, whether the employee’s work hours and work place is conducted by a third party, whether the employee is replaced by his/her work, whether the ownership of equipment, raw materials and implements, etc., the ownership of equipment, raw materials and implements, whether the nature of remuneration is the object of his/her work, whether the basic pay or fixed wage is determined, whether the wage tax is withheld at source, and whether the employee lacks the status of an employee under other Acts and subordinate statutes such as the social security system, and whether the employee lacks the status of the employee’s labor relationship with the above three main reasons should be considered.

According to the above facts, ① the Plaintiff’s duty of delivery is determined by A, or the Plaintiff was in a position to autonomously determine the above duty of delivery, or to refuse to follow A’s instructions. ② The Plaintiff did not work hours and working days each day with C, but did not work for up to 08: 30 days at the time of the Plaintiff’s destination, or even if it did not work for a specific purpose, it can be viewed that the Plaintiff did not directly receive remuneration for the Plaintiff’s work for the purpose of collecting or delivering the goods of the fixed-type transaction business up to 19:0 on Saturdays. In particular, since January 15, 206, it is difficult to view that the Plaintiff did not work for the purpose of collecting or delivering the goods of the Plaintiff at the time of delivery, and the Plaintiff did not work for the purpose of collecting or delivering the goods of the Plaintiff at the time of delivery. It is difficult to view that the Plaintiff did not work for the purpose of paying or deducting KRW 60,000 per share, regardless of its work hours.

(2) Whether a non-party company constitutes a place of business with at least one regular employee

The proviso of Article 5 of the former Industrial Accident Compensation Insurance Act and Article 3 (1) 5 of the Enforcement Decree of the same Act provide that "business, the number of regular workers of which is not less than one person," is the business subject to the Industrial Accident Compensation Insurance Act, and therefore, the term "regular" in this context refers to "the condition", so even if the number of workers becomes less than one person at the time, it shall not be excluded from the application of the above Act, and if there is a difference in the situation, even if there is a case where the number of workers becomes less than one person at the time, it shall not be objectively determined according to social norms. In addition, whether a business is a business employing less than one person at a time shall be objectively determined according to social norms, and it shall not be determined periodically depending on whether the average number of workers per day, calculated by dividing the number of workers of less than 30 days from the date when the number of workers first becomes less than one person, is less than one person (see Supreme Court Decision 9Da5843, Mar. 23, 2000).

As recognized above, the Plaintiff continued to work for the non-party company from January 3, 2006 to the time of the accident in this case, and at least C among other delivery officers are deemed to have established a labor relationship with the non-party company in the same status as the Plaintiff. Thus, the non-party company is a business place with at least one regular employee, and is a mandatorily applicable unit of the Industrial Accident Compensation Insurance Act.

(3) If so, the instant disposition was unlawful on the premise that the Plaintiff does not constitute a worker, which deemed the non-party company as a workplace exempt from industrial accident compensation insurance for less than one full-time employee, under the premise that the Plaintiff is not a worker.

Therefore, the Plaintiff’s claim seeking revocation of the instant disposition is accepted.