[2] Whether the provision on the payment of retirement allowances under the Labor Standards Act or the provision on the guarantee of minimum wage under the Minimum Wage Act applies to foreign workers (affirmative)

[3] The case holding that the Chinese workers who entered China as industrial trainees who entered the status of the overseas investment corporation under the contract with the Chinese local company of the domestic company and entered China constitutes workers under the Labor Standards Act and the Minimum Wage Act

[2] The provisions on the payment of retirement allowances under the Labor Standards Act or the provisions on the guarantee of minimum wage under the Minimum Wage Act apply to foreign workers as well as domestic workers.

[3] The case holding that, in case where Chinese workers entered the status of industrial trainees under the contract with the Chinese subsidiary of the Korean company, and provided labor in the Korean company as industrial trainees, the Korean company invested in full in the Chinese subsidiary, and the contents of the contract for departure training are not merely technical training but merely provided with labor for at least eight hours a day as directed by the Korean company, and accordingly, Chinese workers provided labor under the direction and supervision of the company as well as domestic workers in the domestic factory for about one year and six months, while the technical training was almost little, and regular overtime and night work were done and paid allowances therefor, it constitutes workers under the Labor Standards Act and the Minimum Wage Act

In the same purport, the court below is justified in rejecting the defendant's main defense that the lawsuit of this case was filed in violation of the parties' agreement on jurisdiction, and there is no error in the misapprehension of legal principles as to jurisdiction.

2. In full view of the admitted evidence, the court below recognized the fact that the plaintiffs delegated the plaintiffs' right to represent the lawsuit of this case and the appeal to the plaintiffs' attorney based on their own will. In light of the records, the above fact finding by the court below is just and acceptable, and there is no error of law such as misconception of facts due to incomplete deliberation, as alleged in the grounds of appeal.

3. Determination of whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the form of the contract is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided work in a subordinate relationship with the employer for the purpose of wages. Determination of whether such a subordinate relationship exists shall be made by the employer, whether the contents of work are determined by the employer, and shall be subject to the rules of employment or the rules of service, etc., whether the employer is specific, individual direction and supervision, whether the worker is designated working hours and place of work by the employer, whether the worker is placed under restraint, whether the ownership of alternative work, such as equipment, raw materials and tools, whether the nature of remuneration is stipulated, whether the nature of remuneration for the worker itself, whether there is a basic wage or fixed wage, and whether the wage is withheld from employment income tax, and whether the foreigner provided the status of the worker in a subordinate relationship with the employer, and whether the foreign worker provided labor to the worker in a workplace subject to the Minimum Wage Act for 10 hours, as stated in the Labor Standards Act.

The court below, based on the adopted evidence, found the facts as stated in its decision. Even if the plaintiffs entered into a contract under the name of departure training agreement with the Daedong Model Institute Limited Corporation (hereinafter "Nonindicted Company"), which is a local subsidiary of the defendant company, and entered into the status of industrial trainee as an overseas investment corporation, the non-party company is wholly invested in the defendant company; even according to the departure training agreement entered into between the plaintiffs and the non-party company, the contents of the contract are not merely merely technical training, but it is deemed that the defendant company provided labor for at least eight hours a day as ordered by the defendant company and received wages as a price for such labor; and therefore, the plaintiffs did not receive technical training from the defendant company's Changwon for about one year and six months without any instruction and supervision of the defendant company as well as regular overtime work and night work, it is reasonable to view that the plaintiffs constitutes workers under Article 14 of the Labor Standards Act and the Minimum Wage Act; therefore, in light of the legal principles as to the difference in the number of working days and the records, the court below's determination of facts is justified.

4. In light of the content of the employment contract between the plaintiffs and the defendant and the contents of duties, the plaintiffs cannot be viewed as "a person under probation" under Article 7 subparagraph 2 of the former Minimum Wage Act (amended by Act No. 7563 of May 31, 2005 and enforced on September 1, 2005). Thus, the argument in the grounds of appeal on this point cannot be accepted.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)