1. The term “worker” as provided in subparagraph 1 of Article 2 of the Labor Standards Act means a person who provides work in a business or workplace for the purpose of wages regardless of the type of occupation, and regardless of the type of contract, whether it is applicable shall be determined by whether an employer has provided work in a subordinate

On the other hand, the directors of a stock company shall be appointed at a general meeting of shareholders and registered. The directors appointed under this procedure may exercise the authority prescribed by the Commercial Act, such as the participation in decision-making on the management of the company as members of the board of directors, and manage certain affairs by delegation from the company. Therefore, if the directors are actually in charge of the business as directors prescribed by the Commercial Act and are in charge of the business for the management of the company, if the substance of the entire business in charge is not that of providing certain labor under the direction and supervision of the employer, the directors may

In addition, remuneration received by a director of a corporation as prescribed by the articles of incorporation or the resolution of the general meeting of shareholders shall, in principle, be deemed to be based on the provisions of Article 388 of the Commercial Act. In addition, even when a company receives a retirement allowance under the provisions of the company, the retirement allowance is, in principle, a kind of remuneration paid in return for delegation of duties while in office. Thus, the payment of remuneration and retirement allowance does not necessarily mean that the director has the status of workers (see Supreme Court Decision 2012Da28813, Sept. 26, 2013).

2. The record reveals the following facts.

A. The Defendant Company’s total capital as of February 2012 consists of approximately KRW 1.67 billion, management support division, business division, service business division, technical research institute, and overseas industrial headquarters.

B. On March 18, 2002, the Plaintiff was appointed as a director at a general meeting of shareholders while serving as the head of the business division in the Defendant Company, and was registered as a director on April 24, 2006 in the corporate register of the Defendant Company, and thereafter retired on April 18, 2012 while serving as an executive director.

C. Article 36 of the articles of incorporation of the defendant company provides that the representative director shall represent the company and exercise overall control over its business affairs, assist the representative director, and divide and execute the business affairs of the defendant company, as prescribed by the board of directors. The defendant company has two representative directors and two directors based on the representative director.

D. The Plaintiff, while in office as the head of the department of the Defendant Company, was in charge of the “payment settlement guidance business” and “project-related development business”, and thereafter, after being appointed as the registration director, the scope of business was extended by performing duties as the general manager of the global purchase card business.

E. Article 43 of the Articles of incorporation of the Defendant Company provides that “The remuneration of directors and auditors shall be determined by a resolution of the board of directors, and retirement allowances shall be determined by the rules for payment of retirement allowances for executives following a resolution of the board of directors. Accordingly, the Defendant Company has paid

F. The Plaintiff was relatively free from attendance and retirement time, and there was almost no case of reporting on the extra attendance.

G. The Defendant Company, without preparing a separate delegation contract with the registration director, prepared the same annual salary contract with the ordinary worker.

H. The Plaintiff, as a director of the Defendant Company, attended the board of directors that decided on the important matters of the Defendant Company, and actually performed the delegated duties as a director (the Plaintiff, on March 7, 201, proposed that “in the absence of the provision on payment of retirement benefits of current registered officers, the Plaintiff newly established a retirement allowance of executives applying the current registration officer retroactively in accordance with the same amount as the standard prescribed by the Labor Standards Act, on the ground that there was no provision on payment of retirement benefits of current registered officers

(i) On December 5, 2011, the Plaintiff attended the collective bargaining held on December 20, 201, as a director, as a “person attending the company’s side,” and participated in negotiations with those attending the union and signed in the minutes.

(j) Defendant Company has withheld not only the Plaintiff but also all officers including the representative director from income tax.

3. In full view of the circumstances such as the size and organization of the defendant company, the circumstances in which the plaintiff was appointed as a director of the defendant company, the background leading up to the appointment of the director of the defendant company, the degree of participation in the activities of the board of directors and the decision-making and management of the company, the details of specific duties as a director, and remuneration and treatment, etc., the plaintiff, as a director under the Commercial Act of the defendant company, participated in the important decision-making process concerning the management of the company through the board of directors, etc., and has been entrusted with the affairs concerning the management of the company to a certain extent. As stipulated in the articles of incorporation, the plaintiff was sufficiently discriminated from ordinary members, such as receiving remuneration as a director based on the resolution of the board of directors, etc.

Thus, the plaintiff can not claim retirement allowances under the Act on the Guarantee of Workers' Retirement Benefits on the premise that he is an employee under the Labor Standards Act, regardless of the fact that the plaintiff can claim retirement allowances as part of the remuneration for the director under the articles of incorporation or the regulations on the payment of retirement allowances for officers when he retires from

Nevertheless, the lower court determined otherwise by concluding that the Plaintiff merely was a nominal director, and in substance, it was an employee under the Labor Standards Act who provided labor in a subordinate relationship with the representative director of the Defendant Company under specific command and supervision, and that the Defendant Company was obligated to pay retirement allowances as stipulated in the Guarantee of Workers' Retirement Benefits Act to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the nature of the duties and the nature of the directors under the Commercial Act

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)