[퇴직금][공1992.1.1.(911),80]
A. Whether a major constitutes an employee under Article 14 of the Labor Standards Act (affirmative)
(b) Whether an employee falling under Article 14 of the Labor Standards Act is entitled to claim a retirement allowance under Article 28 of the same Act, even though there is no agreement on the payment of a retirement allowance;
A. Although a medical doctor provided his/her labor to a training hospital in an essential training course for acquiring qualification for a medical specialist, he/she also holds the status of a medical specialist as an employee who provided his/her labor and received wages in return for providing his/her labor in accordance with the medical treatment plan determined by the hospital, along with the status of an trainee, such as patient treatment as determined in the curriculum, and the status of a medical specialist as an employee who is paid wages in return for providing his/her labor under the hospital’s direction and supervision. Therefore, the medical specialist constitutes a worker under Article 1
(b) Even if the retirement allowance system is not established or an agreement on the payment of a retirement allowance is not made, if an employee falls under Article 14 of the Labor Standards Act, a claim for a retirement allowance under Article 28 of the same Act may be made,
A. Article 14(b) of the Labor Standards Act
A. Supreme Court Decision 88Meu21296 delivered on July 11, 1989 (Gong1989, 1222). Supreme Court Decision 78Da425 delivered on June 27, 1978 (No. 2713 delivered on October 30, 1979) 79Da1561 delivered on October 30, 197 (Gong1987, 520)
Plaintiff (Appointed Party)
Korea
Gwangju High Court Decision 91Na1874 delivered on July 10, 1991
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. According to the facts duly established by the court below based on its adopted evidence, even though the plaintiff (appointed party) provided labor as stated in its reasoning in the training process essential for acquiring qualification for a medical specialist, the status of the plaintiff (appointed party) as a medical resident and the status of the worker who provided labor and received wages in accordance with the medical treatment plan set by the pre-nam University Hospital under the defendant's control and supervision as well as the status of the worker who received wages in return, as well as the status of the worker who provided labor in accordance with the above medical treatment plan set by the pre-nam University Hospital under the defendant's control and supervision. In addition, the plaintiff (appointed party) provided labor under the above hospital's direction and supervision, and thus, it constitutes a worker under Article 14 of the Labor Standards Act in relation to the defendant, and therefore, the defendant is obligated to pay retirement allowances as prescribed in Article 28 of the same Act (see Supreme Court Decision 88Meu21296, Jul. 11, 1989).
2. The argument points out that the court below erred by misapprehending the legal principles as to the retirement allowance claim under Article 28 of the Labor Standards Act, although the defendant did not have established a retirement allowance system at the time of entering into an employment contract, or did not have agreed to pay a retirement allowance, the plaintiff (appointed party) is not able to claim a retirement allowance under Article 28 of the Labor Standards Act, unless there are special circumstances, unless there is a worker who falls under Article 14 of the Labor Standards Act (see, e.g., Supreme Court Decision 79Da1561, Oct. 30, 197; Supreme Court Decision 86Meu1355, Feb. 24, 1987).
Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)