근로기준법위반등
The judgment below
The guilty portion shall be reversed.
Defendant shall be punished by a fine of KRW 1,500,000.
The above fine shall be imposed on the defendant.
1. The lower court rendered a judgment of acquittal on the charge of violating the Labor Standards Act due to the failure to prepare and deliver the labor contract with respect to B among the facts charged in the instant case, and the prosecutor did not appeal on the part not guilty.
Therefore, the part of the judgment of the court below, which was separately determined as is, shall be excluded from the scope of the judgment.
2. Summary of reasons for appeal;
A. Defendant 1) In fact, misunderstanding of the legal doctrine or misunderstanding G did not constitute a worker under the Labor Standards Act because it was a condition that the Plaintiff would bring about a profit by establishing an IF club instead of receiving wages from F. As such, it does not constitute a worker under the Labor Standards Act.
H, separate from the F I's I's I's I's I's I's clubs, was employed to prepare for the government's public recruitment projects, and was paid only actual expenses until the government's public recruitment projects are elected, so it cannot be viewed as a worker under the Labor Standards Act.
Therefore, the judgment of the court below that found G and H as workers and found them guilty of this part of the facts charged is erroneous in the misapprehension of legal principles as to worker status under the Labor Standards Act.
2) The punishment sentenced by the lower court (2 million won in penalty) is too unreasonable.
B. The sentence imposed by the prosecutor by the court below is too uneasible and unreasonable.
3. Determination
A. 1) As to the assertion of misunderstanding of facts or misapprehension of the legal doctrine, whether a person constitutes a worker under the Labor Standards Act should be determined depending on whether the form of a contract is an employment contract or a delegation contract is an employment contract, or whether the substance of a labor relationship with which a person providing labor has provided labor in a subordinate relationship with an employer for the purpose
Here, whether or not a subordinate relationship is determined by the employer, which is subject to the rules of employment or service regulations, and whether or not the employer directs and supervises it in the course of performing his duties.