2013Gahap39402 (Interim Confirmation) Confirmation of the existence of the worker's abandonment

2. The defendant (the plaintiff in intermediate confirmation) pays to the plaintiff (the counter-party in intermediate confirmation) 20% interest per annum from each corresponding day to the day of complete payment as stated in the column of attached Table 1 "total sum" and each of them.

3. The remainder of the plaintiff (the intermediate confirmation defendant) except the plaintiff (the intermediate confirmation defendant) B shall be dismissed, respectively.

4. The costs of lawsuit are assessed against the defendant (the intermediate confirmation plaintiff) by aggregating the principal lawsuit and the counterclaim for intermediate confirmation.

5. Paragraph 2 can be provisionally executed.

Preliminaryly, the defendant shall pay to the plaintiffs 2% interest per annum of 20% per annum from the corresponding date to the day of full payment on each Dong and each of them in the attached Table 2's Schedule.

Counterclaim for interim confirmation: The plaintiffs confirm that they were not the defendant's workers.

A. The plaintiffs' assertion

Since the Plaintiffs were employed as English instructors in their English relations with the Defendant, such as under specific direction and supervision by the Defendant, they were retired, they constitute workers prescribed by the Labor Standards Act. Therefore, the Defendant is obliged to pay the Plaintiffs the weekly paid leave allowance, annual paid leave work allowance, retirement allowance, and damages for delay.

B. Defendant’s assertion

Since the Plaintiffs do not constitute workers under the Labor Standards Act, such as not subject to specific direction and supervision by the Defendant, the Defendant does not have the obligation to pay the Plaintiffs weekly leave allowance, annual leave work allowance, and retirement allowance, and seek confirmation that the Plaintiffs did not have the status of the Plaintiffs as the counterclaim of interim confirmation.

2. Determination on whether a counterclaim for interim confirmation is lawful

In the event there is a dispute between the parties as to the existence of legal relations which are in a preemptive relationship with respect to the judgment of the principal claim during the course of the lawsuit, the lawsuit for interim confirmation shall be subject to the benefit of confirmation in accordance with the general principles of the lawsuit for confirmation (Article 264(1) of the Civil Procedure Act).

However, only when a litigation seeking confirmation of past legal relations affects the present rights or legal status, and it is recognized that obtaining a judgment on confirmation of the said legal relations is an effective and appropriate means to eliminate risks or apprehensions with respect to the present rights or legal status (see, e.g., Supreme Court Decision 2010Da43580, Sept. 30, 2010).

The defendant's counterclaim for interim confirmation that the plaintiffs did not have a status as the employee of the defendant company in the past is seeking confirmation of the past legal relations. The defendant filed a counterclaim for interim confirmation of this case in order to argue that the plaintiffs did not have a duty to pay the weekly leave allowance, annual leave work allowance, and retirement allowance, and thus, it cannot be deemed that the plaintiffs' rejection of the claim for interim confirmation of this case contains more active contents than the plaintiffs' rejection of the claim for main lawsuit. Thus, the defendant's counterclaim for interim confirmation cannot be deemed an effective and appropriate means to eliminate risks or apprehensions about the present rights or legal status. Therefore, the defendant's counterclaim for interim confirmation is unlawful because there is no benefit of confirmation

3. Determination on the main claim

A. Determination as to whether the plaintiffs are workers

1) Facts of recognition

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each of the statements in Gap's 2 through 36, 38 through 40, 50 through 70, Eul's 1 through 4, 17, 21, 22, 24, 25, 28, 29, 31 through 48 (including the numbers, if any; hereinafter the same shall apply).

A) The Plaintiffs entered into a contract with the name of “Agreging Service” for the following terms and conditions at a English private teaching institute called “C” in the trade name of “C” operated by the Defendant, and entered into a contract with the following terms and conditions, and retired from the last day of the service period after serving as an English language instructor for each corresponding period stated “the service period”. The Plaintiffs worked for 3 to 6 hours a day, 4 to 5 days a week, and regardless of the number of students demoted by the Plaintiffs, were paid a monthly wage of KRW 28,00 through 45,00 per hour set in advance by the Defendant regardless of the number of students demoted by the Plaintiffs.

[Main Contents of the Contract of this case]

- The contract term shall be one year, and the contract term shall be automatically extended every one year unless the instructor is dismissed in the middle of the year or the instructor is notified of his refusal to renew the contract 45 days in advance.

- The benefits may be paid as an hourly rate.

- The plaintiffs must observe the rules of the defendant and be present at the regular education held by the defendant.

【Report on Service Period of Plaintiffs】

A person shall be appointed.

A person shall be appointed.

B) The Defendant regularly taught the method of English language lectures to the Plaintiffs during the term of the contract.

C) Of the various English subjects, the Plaintiffs were engaged in the course of study in accordance with the class schedule determined by the Defendant through prior consultation with the Defendant on the basis of the subjects and time table set in advance by the Defendant, and the Defendant determined and notified the Plaintiffs of the contents of lectures and the lecture, and directly produced and issued teaching materials necessary for lectures. The Plaintiffs were prohibited from running the course of study in accordance with the contents of the lectures notified by the Defendant and the teaching materials set by the Defendant, and running the course of study using other teaching materials.

D) The Defendant installed CCTV in each lecture room to monitor the Plaintiffs’ compliance with the lecture hours, the contents and attitude of the lecture, and as a result of monitoring, the Defendant directed and supervised the contents and attitude of the lecture by setting out a list of days to be done during the lecture hours and notifying the instructors thereof.

E) In addition to the English lecture, the Plaintiffs prepared and submitted an assessment report containing the assessment of students’ attitude and degree of class, grade, etc. according to the Defendant’s instruction. The Plaintiffs attended the parents meeting held by the Defendant to explain the lectures to parents, participated in education and training and workshop to improve students’ ability, and performed incidental duties, such as sending cell phone text messages with the students’ ability to teach students during the mid-to-round examination or the end-round examination period.

F) The Defendant regularly assessed the Plaintiffs according to the following items, and notified the Plaintiffs of the results of the assessment, and pointed out the matters to be improved, and sent a form of “self-improvement plan” to prepare and submit it, or conducted an instructor personal interview with regard to the results of the assessment.

A person shall be appointed.

G) The Defendant, as well as the Plaintiffs, applied the following provisions to English instructors of the English language (Evidence A6) (Evidence A) and Banach Fluty Guty Guline Master (Evidence A7).

- must check daily e-mail and bulletin boards of private teaching institutes.

- The attendance at work 20 minutes prior to the lecture hours must be stamped, and if so, it may be subject to a disposition for good attendance.

- begin and terminate at regular times;

- must observe the standards set by the defendant with respect to uniforms and appearance.

- He/she must set a good example during class hours, inform students of the instructor's personal information, or receive gifts or bribe from students.

- If the first class day or new students enter, send a letter of exchange to the student and explain the composition of the class and the contents of the task.

- should not discuss the determination of class classes for students and students.

-it shall not food for school hours and shall prohibit students from eating food for school hours.

-to lead the co-ment of students by taking a eye with students and asking questions.

- must observe the program virtual and class composition set by the Defendant.

- 100% English in all programmes shall be used.

- They should not confirm personal e-mail during class hours, or web tamping or play games.

- The first week and the last three weeks during a semester must take the leave.

H) The Defendant, at least 20 minutes before class hours, instructed the Plaintiffs to work in the Defendant’s electronic computer system, managed the Plaintiffs’ work to work.

I) In order to use the Plaintiffs’ leave, the Defendant directed the Plaintiffs to obtain prior approval prior to one month prior to the scheduled date of leave, and to obtain prior approval at least 24 hours prior to the beginning of the class if the Plaintiffs are unable to attend the class due to personal circumstances or diseases.

(j) According to the Defendant’s regulations, the Defendant may take a measure of probation against an instructor who fails to comply with the Defendant’s instruction or regulations or whose class evaluation is low during the period from 30 to 180 days, depending on the content and degree of the offense. The Defendant may unilaterally reduce the class hours of the instructor, instruct the instructor to undergo the education, or prohibit the use of leave during the period of probation.

(k) The Plaintiffs were prohibited from serving in addition to C or having another person act as a substitute for their lectures.

2) Determination

The determination of whether an employee is a worker under the Labor Standards Act shall be based on whether the employee provided his/her labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Determination of whether an employee is a subordinate relationship should be made by comprehensively taking account of the following: (a) the employer’s contents of work; (b) whether the employer designates working hours and working places; (c) whether the employee is bound by the employer; (d) whether the employer is able to operate his/her business on his/her own account on his/her own account; (e) whether the employer voluntarily owns equipment, raw materials or tools; (e) whether the employee is capable of operating his/her business on his/her own account; (e) whether the risks, such as the creation of profits through provision of labor; and (e) whether the amount of remuneration was determined by the basic salary or fixed wage was withheld from the employer; and (e) whether the employee’s status was exclusive to the employer; and (e) whether the social security system was recognized as an employee; and (e) whether the employer arbitrarily determined the status of the employee.

In light of the above legal principles, the plaintiffs are workers under the Labor Standards Act who provide labor to the defendant company in a subordinate relationship with the purpose of wage in substance. Therefore, the defendant is obligated to pay the plaintiffs the weekly paid leave allowance, annual paid leave allowance, and retirement allowance under the Guarantee of Workers' Retirement Benefits Act.

(b) Calculation of an amount;

The plaintiffs' monthly paid leave allowances, annual paid leave allowances, and retirement allowances are calculated based on the plaintiffs' monthly paid leave allowances, annual paid leave allowances, and hourly paid leave allowances, which are calculated based on the plaintiffs' monthly paid leave hours and hourly paid leave allowances. In other words, since the plaintiffs' paid monthly paid leave allowances, the plaintiffs' paid monthly paid leave allowances should be calculated by multiplying the plaintiffs' paid monthly paid leave hours by the 1st day's paid monthly paid leave hours, which are calculated by dividing the 5th day's paid monthly paid leave hours by the number of days in the corresponding month, as the plaintiffs' sought, by the 1st day's paid leave allowances, which are calculated by dividing the 1st day's paid leave hours in the corresponding month by the 1st day's paid leave hours in the annexed Table 1, 2nd day's paid leave allowances calculated by dividing the 1st day's annual paid leave hours by the 1st day's paid leave hours in the corresponding month, 3th day's paid leave allowances in each of the plaintiff's paid leave allowances in the previous 2th day's paid.

Therefore, the defendant is obligated to pay to the plaintiffs each amount in the column of attached Table 1, which is the sum of weekly paid leave allowances, annual paid leave allowances, and retirement allowances, and to pay damages for delay calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from each corresponding day to the day of full payment, on the day following the expiration of 14 days from each of the plaintiffs' retirement dates.

In this regard, the defendant asserts that the plaintiffs should calculate weekly paid leave allowances, annual paid leave allowances, and retirement allowances in accordance with attached Table 2 of the Enforcement Decree of the Labor Standards Act (matters concerning the criteria for determining working conditions of part-time workers) because they fall under the "part-time worker" under the Labor Standards Act.

On the other hand, Article 2 subparagraph 8 of the Labor Standards Act provides that "part-time workers" means workers who are employed in the same kind of work at the workplace during a week, who are employed in the same kind of work at the workplace, compared to the contractual hours during a week." However, there is no evidence to acknowledge that the plaintiffs were workers under the short contractual hours during a week compared to the ordinary workers engaged in the English translation lectures, which are of the same kind of work as the plaintiffs at the workplace of the defendant, and therefore, the above argument by the defendant is

Conclusion

The defendant's counterclaim for interim confirmation is dismissed as illegal, and the plaintiff B's main claim is accepted as reasonable. The plaintiff B's main claim except the plaintiff B is accepted within the scope of the above recognition, and the remaining main claim is accepted within the scope of the above recognition, and it is dismissed as it is without any justifiable reason.

Judges Lee Jin-hee

Judges Lee Jae-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.