The case holding that the contract between Gap and Eul takes the form of delegation contract, but the contract contents include a number of matters that can replace the rules of employment, such as the method of performing duties, prohibited matters, payment criteria for remuneration, etc., Eul is placed at the point designated by Gap company and reports in detail the performance and process of Gap company while collecting claims allocated by Eul company, Eul's claims constitutes the principal business of Eul, Eul's claims collection business constitutes Eul's act of continuously managing and evaluating Eul's performance, and Eul's act of collecting claims constitutes the principal business of Eul, Eul's act of designating Eul's working hours and place, and actually binding Eul's act through various guidelines related to work, and it controls Eul's specific and general work methods such as conducting inspections from time to time; Eul's office, office, office, and equipment; Eul's act on behalf of the third party; Eul's act on behalf of the third party; Eul's act on behalf of others; Eul's act on behalf of others; and Gap's act on behalf of others, which provided Gap company's wage and its duty to renew work amount, barring special circumstances.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

A. The defendant is a company engaged in debt collection and credit investigation with the permission of the Financial Services Commission in accordance with the Use and Protection of Credit Information Act.

B. On July 18, 2006, the Plaintiff entered into a contract with the Defendant for debt collection delegation business, and thereafter, the Defendant went back on March 7, 2018 while taking charge of managing and collecting claims that the Defendant accepted from creditors.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-12, the purport of the whole pleadings

2. Determination on a retirement allowance claim

A. Whether the Plaintiff constitutes an employee under the Labor Standards Act

1) Relevant legal principles

Determination as to whether an employee is a worker under the Labor Standards Act ought to be based on whether an employee provided labor in a subordinate relationship with an employer for the purpose of wages in substance, rather than in a contract form. Determination of whether an employee is a subordinate relationship ought to be made by comprehensively taking account of various economic and social conditions such as the employer’s provision of labor, continuity of the provision of labor, and degree thereof, whether the employer has considerable command and supervision in the course of performing duties, whether the employer designates working hours and working places, and whether the employee is bound by the employer, whether the employer is able to operate his/her business on his/her own account, whether the employer is able to own equipment, raw materials, work tools, etc., to create profits through the provision of labor, and cause losses, etc., whether the nature of remuneration is determined, whether the nature of remuneration is the object of labor, whether the amount of remuneration is exclusive for the employer and its degree, whether the employee status is recognized as an employee under the Act on Social Security System, and whether the employer has been recognized as an employee.

2) Facts of recognition

A) The Plaintiff prepared a contract with the Defendant several times, and some of the contract contains the following contents.

Article 2 (Business Hours A (hereinafter the same shall apply) of the Table included in the main sentence is to carry out the following duties as free occupational income earners under a contract with the “Defendant A” (hereinafter the same shall apply). 1. The payment of charges to an obligor is discovered; 4. Other incidental duties provided for in the following subparagraphs (11 months) to carry out claims collection business; 4. The working hours and places of the “A” are not specified separately in the nature of the business under Article 2 (Business Hours and Places). The payment of charges to the employees who are deemed to have difficulty in performing their duties on the basis of their respective 6. The payment of charges to the employees shall not be made within the scope of 7. The payment of charges to the employees who are deemed to be in breach of the following provisions regarding their respective duties, such as the payment of charges to the employees during the period from the 6.0th day of their respective service hours and places, unless otherwise specified in Article 5 (Method).

B) The Defendant has eight headquarters under the head office, including the Civil Claim Headquarters, the Dong Branch Headquarters, the Seog District Headquarters, the Desired Women's Regional Headquarters, the Credit Counseling Headquarters, the YM Headquarters, one Credit Counseling Headquarters, and the TM Credit Headquarters, and operates a total of 46 branches under each head office. Each branch is composed of several teams. Among them, the head of the branch office and the deputy head of the appointment team are appointed as full-time workers, while the team head is most contractual workers, but some full-time employees are included.

C) During the service period, the Plaintiff was placed in the office designated by the Defendant and inquired of credit information related to the above claim through access to the Defendant’s computer network from the Defendant’s office every day to the Defendant’s credit information and conducted the duties of property investigation, location detection, demand for repayment, repayment receipt, etc. against the debtor. The Plaintiff, after performing the above duties, entered the details of the duties, processed performance, etc. returned to the office, entered them in the above computer network, and prepared various reports in the form prepared by the Defendant, such as tracking investigation report, non-registration investigation report, real estate profit assessment report, and real estate profit assessment report, and submitted them to the affiliated head of the team and branch office, and submitted them to the affiliated branch office by setting up the monthly, weekly, and monthly target values.

D) The Defendant uses the method of performing duties to be performed by the head of a branch office as educational data for the head of the branch office. The main contents of the daily work include “inspection of the management of the position of the branch office, overall inquiries and mental education, inspection of collection performance, inspection of the results of collection, inspection of the results of performance, etc.”, “inspection of the progress of collection by section, inspection of the collection of personal service evaluation table, management of personnel records records, interview with the person with poor performance in the day, education, etc.”, and “monthly business” as a monthly business.

E) The head of each branch office of the Defendant formulated a business plan composed of monthly basic holding and holding amount by individual team members of each month, conference rate (number of telephone call calls, frequency of contact visits, number of times of movement visits), parking of each month, the target recovery amount by each day of the pertinent week, and target turnout rate, and submitted it to the head office to which he/she belongs. The head of each branch office of the Defendant collected daily daily daily collection results by each team group members and submitted it to the head office under his/her control. The head office, through the head office, prepared a daily total report by each headquarters and branch office and distributed it to the head of each headquarters and branch office. In this case, the Defendant had the head office or branch office establish and implement measures to resolve the depression. Each branch office affiliated with the head office identified the causes of depression for each individual, conducted education in advance (fedbbbk), prepared emergency service system utilizing the disabled, prepared the emergency duty team for the guide and the head of each branch office under his/her control, prepared the daily allocation of the company and the head of each unit.

(f) At the Defendant’s ○○ point, “Abscing time 08:30, 19: 19:30 on-site attendance time (except when executing) and on-site retirement time, after obtaining prior approval from the appointment team leader, the observance of intensive working hours (not later than 10:30) and uniforms (only on Saturdays), the upper school meal time 12:0-13:00-13:00, daily work hours after submitting the work implementation plan, the computerized input, the personal PC security, thorough keeping of documents, prohibition of leakage of information: 10-10-20-10-20-10-10: 10-20-10-20-10-20-10-20-10-10-20-10-10-10-10-20-10-10-10-10-10-10-20-10-10-10-20-10-3:0-2

G) Claim collectors have entered the hours of attendance and retirement in the overtime (e.g., going out) ledger, and entered them in the supplementary account book.

H) The Plaintiff received fees based on the records of recovery of claims from the Defendant on the 25th day of each month during the service period.

I) The Plaintiff was assigned a seat to the office located in the Defendant’s branch, and the office fixtures and equipment necessary for the work were provided by the Defendant. Various expenses, such as telephone charges, postal charges, resident registration cards, and the issuance of certified copies of the real estate register, execution and auction, were compensated by the Defendant.

(j) The Defendant did not subscribe the Plaintiff to the National Pension, Health Insurance, Employment Insurance, and Industrial Accident Compensation Insurance, and withheld and paid business income tax on the Plaintiff’s fee revenues.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 2-12, 3-18 (including each number in the case with a serial number) and the purport of the whole pleadings

3) Determination

In light of the following circumstances that are recognized by comprehensively taking into account the above facts and the purport of the entire arguments, the plaintiff is considered to be a worker under the Labor Standards Act who provided the defendant with labor such as credit management and collection for the purpose of wages.

① Among the contracts made between the Plaintiff and the Defendant, the Defendant takes the form of a delegation contract to which the Defendant entrusted debt collection, etc. to the Plaintiff. However, the contents of the contract include a number of matters in lieu of the rules of employment, such as methods of performance of duties, prohibited matters, and criteria for payment of remuneration. The grounds for disciplinary dismissal or layoff were grounds for termination of a contract, and the Defendant also demanded a guarantee of personal guarantee insurance as security for compensation

② The Plaintiff, at a point designated by the Defendant, entered the details of the work performed on that day in the Defendant’s computer network while collecting the claims assigned by the Defendant, and prepared a report, a draft report, etc. according to the Defendant’s format and obtained approval from the head of the team or branch office to which he belongs, and submitted it to the Defendant by setting up a separate, weekly, and monthly target values and submitting it to the branch office to which he belongs.

③ The Defendant collected the daily collection performance of each headquarters and its affiliated branch offices, and had the headquarters or its affiliated branch offices establish and implement measures to resolve the depression, and each branch has been under surveillance and control by ordering the Plaintiff to set the target value for the collection of claims against the Plaintiff, continuously manage and evaluate the Plaintiff’s performance, by ordering the Plaintiff to establish measures where the performance is low, and by taking disadvantageous measures.

④ The Plaintiff’s claims collection business constitutes a principal business of the Defendant, and the Defendant was actually bound by the Plaintiff’s working hours and places, and the Plaintiff was given instructions and education on the specific and general methods of performing his/her duties, and controlled the method of conducting his/her duties, such as checking them from time to time. The Plaintiff provided office, office, office, office, equipment, etc., and borne various expenses, such as telephone, postal charges, and expenses for issuing copies

⑤ The Plaintiff could not have a third party act on behalf of the Plaintiff, and the Plaintiff was either contractual or actually engaged in the Defendant’s business, and was exclusively engaged in the Defendant’s business.

6. The contract between the Plaintiff and the Defendant was renewed, except in extenuating circumstances, and the provision of labor by the Plaintiff was continued.

7) Although there are circumstances in which the amount of fees to be paid to the Plaintiff is different by party and period, the payment is determined based on the result of recovery of claims, it is reasonable to view it as wages, which are the remuneration for labor, as the amount varies depending on the quality and quantity of labor provided by the Plaintiff.

8) With no basic wage or fixed wage determined for the Plaintiff, the Defendant withheld the Plaintiff’s fee from the business income tax, which is not the earned income tax. Although the Plaintiff was not insured for the fourth period, it is highly likely for the Defendant to arbitrarily determine by taking advantage of the economic superior status. Therefore, the Plaintiff’s worker nature cannot be readily denied on the ground of such circumstance.

(b) Occurrence of a claim for retirement allowances;

The fact that the plaintiff was a worker who provided labor to the defendant in a subordinate relationship for the purpose of wages and was retired from his office for more than one year is the same as the above. Thus, the defendant is liable to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act to the plaintiff.

(c) Scope of obligations to pay retirement allowances;

1) The Plaintiff’s fees that the Plaintiff received based on debt collection performance are paid for the entire amount of labor. Even if the monthly amount varies, it constitutes the average wage that serves as the basis for the calculation of retirement allowances, and barring any special circumstance, the Plaintiff’s average wage constitutes the amount calculated by dividing the total amount of the Plaintiff’s wages (fee) paid during the three months preceding his/her retirement by the total number of days during the pertinent period, barring any special circumstance.

2) According to the evidence Nos. 12 and 2-12 of evidence Nos. 1-2-12, the number of days of Plaintiff’s retirement allowance is 4,253 days from July 15, 2006 to March 7, 2018. The total amount of wages the Plaintiff received during the three-month period prior to the date of retirement is 8,556,640 won (=3,146,790 won + 2,838,070 won + 2,571,780 won + 2,570 won). The number of days before retirement is 90 days. Accordingly, the Plaintiff’s retirement allowance is 33,234,146 won ± 90 days ± 30 days 】 (4,253/365 days ± 365 days), and the Defendant is obliged to pay part of the Plaintiff’s retirement allowance paid to the Plaintiff during the three-day period from the date of retirement allowance payment to the 2321324th day to the Plaintiff’s.

3. Conclusion

The plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Jin-nam (Presiding Judge)