[2] In a case where the issue arises as to whether the delivery service provider affiliated with the delivery agency constitutes a person in special type of employment as stipulated under Article 125 subparagraph 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act, on the ground that it is reasonable to regard the delivery service provider as the delivery service provider affiliated with the delivery agency, and as the delivery service provider, the case holding that the lower court erred by misapprehending the legal doctrine, even though it is necessary to further examine and determine whether the Party “A” satisfies the specific requirements as a person in special type of employment, as stipulated under the above provision, on the ground that it is reasonable to regard the provider as a “house delivery service provider according to the subdivision of the Korean Standard Classification of Employment” as the “person in special type of employment”

[2] In a case where the issue arises as to whether the delivery service provider affiliated with the delivery service provider constitutes a person in special type of employment under Article 125 subparagraph 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 27050, Mar. 22, 2016; hereinafter the same shall apply), the case holding that it is reasonable to conclude that: (a) the place of business to which the delivery service provider Gap belongs is a delivery service provider other than restaurant; and (b) the franchise store’s service provider confirmed the details of the request for delivery through the delivery service; (c) received food from the franchise store; and (d) received food from the franchise store; and (d) received it to the recipient designated by the franchise store; and (d) received the delivery service; and (e) received a collision with pedestrians, and (e) received a closed chest plebro, etc., from the Korean Standard Classification of Employment Classification Table, and thus, it does not constitute a person in special type of employment under Article 125 subparagraph 2 of the former Enforcement Decree.

1. As to whether the intervenor joining the defendant constitutes a worker

A. The term “worker” under the Industrial Accident Compensation Insurance Act refers to an employee under the Labor Standards Act (main sentence of Article 5 subparag. 2). Determination of whether a contract constitutes an employee under the Labor Standards Act ought to be made depending on whether the substance of the labor-providing relationship is an employment contract, a contract, or a delegation contract, provides an employer with labor for the purpose of wages at a business or workplace. Here, whether a dependent relationship is determined by the employer or not, ① whether the employer determines the contents of the work, and is subject to the rules of employment or employment, etc., ② whether the employer designates the working hours and working place, and is subject to detention, ③ whether the employer is able to operate his/her business on its own account, such as owning equipment, raw materials, working tools, etc., or having a third party employ and act on behalf of the employer, ④ Whether the employer has a superior nature of remuneration, ⑤ whether the nature of remuneration was determined by the Labor Standards Act, ③ whether the employer was subject to the provision of labor income tax, and ③ whether the social security system or status of the employee is recognized.

B. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment partially accepted by the lower court reveals the following circumstances.

(1) The Plaintiff operated a delivery agency (hereinafter “○○○○○○” (hereinafter “instant workplace”) in Gwangjin-gu, Seoul, while installing a “△△△△△△△” (hereinafter “instant program”) a delivery agency program (hereinafter “member shop”) in the restaurant, etc., and received KRW 100,000 per month from the franchise store as the fee for the program.

(2) From October 3, 2013, the Intervenor joining the Defendant (hereinafter “ Intervenor”) installed the instant program in his/her smartphone and performed delivery work.

(3) The delivery source belonging to the instant place of business, including the Intervenor, could decide whether to refuse to choose the request in the case of the Plaintiff’s request for delivery via the instant program at the franchise store. Even if the Plaintiff refused the request, there was no special sanction against the Plaintiff. The instant program did not function as a satellite navigation device (Glbal PPS), and the Plaintiff could not control the present location and delivery status of the delivery source, and the Plaintiff did not fully bear the responsibility for the delay in delivery.

(4) The Plaintiff did not separately set the delivery center’s business hours or place of service. Furthermore, as long as the delivery service performed under the jurisdiction of the instant place of business does not interfere with the delivery service, the delivery center was able to carry out delivery services by another company at another time, and the delivery service was allowed on behalf of another person.

(5) The delivery source received the delivery fee of KRW 4,500 from the 2,500 per delivery case to the 4,500 won per delivery, and did not receive the fixed pay or bonus separately from the Plaintiff.

(6) The Plaintiff did not prepare a labor contract with the delivery center, did not withhold the labor income tax from the commission that the delivery center received, and did not report the establishment of the insurance relationship with the fourth insurance (national pension, health insurance, employment insurance, and industrial accident insurance) by including the delivery center in the employee list.

(7) On November 26, 2013, at around 20:30 on November 26, 2013, the intervenor suffered damage to the closed scarcity and chest water by suffering from an accident that conflicts with the pedestrian who was passing without permission while driving and delivering the letobane owned by the plaintiff-friendly by the plaintiff at the vicinity of the Gunar Station located in Gwangjin-gu, Seoul Special Metropolitan City.

C. Examining these circumstances in light of the legal principles as seen earlier, it is difficult to view that the Intervenor’s labor for the purpose of earning wages under the direction and supervision of the Plaintiff is an employee under the Labor Standards Act. In the same purport, the lower court’s determination that the Intervenor did not constitute an employee under the Labor Standards Act is justifiable as it is based on the legal principles as seen earlier, and contrary

2. As to whether an intervenor is a person in special type of employment

A. Article 125(1) of the Industrial Accident Compensation Insurance Act provides that, regardless of the form of a contract, regardless of whether the Labor Standards Act, etc. applies, a person who needs to be protected from occupational accidents as a person who provides labor to a single business on a regular basis and lives with remuneration necessary for the operation thereof, and does not use others in providing labor (hereinafter “person in special type of employment”) shall be deemed as a business subject to the Industrial Accident Compensation Insurance Act, among those who are engaged in jobs prescribed by Presidential Decree (hereinafter “person in special type of employment”) among those who provide labor. Article 125 subparag. 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 27050, Mar. 22, 2016) provides that “a person in special type of employment, as one of the persons in special type of employment, is engaged in delivery service upon request from one Kwikset service provider mainly in accordance with the standards set by the Minister of Employment and Labor.”

Accordingly, the “Standards for Exclusiveity of Kwikset Service Workers” (Notice of the Ministry of Employment and Labor No. 2012-40 of April 11, 2012) provides that “a person who mainly engages in delivery service upon entrustment of one Kwikset Service Business from one Kwikset Service Business entity” refers to a person who belongs to one Kwikset Service Business entity and performs only delivery service of such entity” (Article 1) or “a person who partially engages in delivery service of another business in the course of performing its delivery service, and who falls under any of the following subparagraphs (Article 2).” In addition, each subparagraph of paragraph (2) provides that “a person who enters into an agreement to preferentially engage in delivery service of his/her affiliated business (registration)” (Article 2012-40 of the Ministry of Employment and Labor’s notification). “A person who mainly engages in delivery service upon entrustment of work in the manner determined by the registered business entity (registration) such as on a fixed amount (registration)” (Article 2).

On the other hand, the Korean Standard Classification of Occupations (Notice No. 2007-3 of the Statistics Korea, July 2, 2007) provides that “922 door-to-door shop crew” in subdivision refers to “to transport various kinds of goods, such as orders and commodities purchased by a customer, to the customer so that the customer wants,” and “923 food delivery center” refers to “a person who delivers the relevant house to a specific place at the customer’s request.”

B. Examining the aforementioned circumstances in light of the content and purport of the aforementioned provisions, the following determination may be made as follows.

(1) The instant place of business is a delivery agency, not a restaurant. The duties performed by the Intervenor in the instant place of business are to confirm the details of the request for delivery requested through the instant program, and to deliver food, etc. to the recipient designated by the chain store, which is to receive as the requested chain store, and this is more consistent with the duties of “922 stacks” rather than the duties of “922 stacks” in the subdivision of the Korean Standard Classification of Occupations.

(2) Therefore, it is reasonable to view that an intervenor who performed delivery services at the instant workplace as the “selective dispatch according to the subdivision of the Korean Standard Vocation Classification Table” under Article 125 subparag. 6 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act. [The amended Korean Standard Vocation Classification (Notice of Statistics Korea) of July 3, 2017 provides for the “delivery Agency” in the content of “the delivery Agency”, which is the three classification of door-to-door dispatch units, and the amended “Standards for Exclusiveity of Kwikset Service Workers” (Notice of Ministry of Employment and Labor) as amended on March 31, 2017, also stipulates that “ Kwikset Service Providers” includes “kwikset Service Providers” as the same.

(3) As such, the Intervenor should further examine and determine whether the Intervenor satisfies the specific requirements as a person in special type of employment.

C. Nevertheless, the lower court determined that the remaining Intervenor did not constitute a special type of employment, which concluded that the Intervenor’s duties performed by the instant workplace constituted “923 Food Delivery Service” among the subdivisions of the Korean Standard Classification Table of Employment Classification. In so doing, the lower court erred by misapprehending the legal doctrine on the special type of employment under the Industrial Accident Compensation Insurance Act, thereby failing to exhaust all necessary deliberations regarding the exclusive nature, etc., which is the requirements of a special type of employment

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)