A. Defendant (Misunderstanding and misunderstanding of legal principles)

(1) E and F (hereinafter referred to as “victims”) do not provide work in subordinate relationship to D, a defendant’s operation, and do not constitute workers under the Labor Standards Act.

(2) Even if the employee’s monthly allowance, annual allowance, and retirement allowance are deemed to constitute the above-mentioned employee, the amount of wages, which are the basis of the calculation of the employee’s monthly allowance, annual allowance, and retirement allowance, excluding the vehicle remuneration, and the aggregate of the unpaid monthly allowance, annual allowance, retirement allowance, etc. (hereinafter “paid monthly allowance, etc.”) for E calculated accordingly, shall be 31,320,529 won, and the unpaid monthly allowance, etc. for F shall be 17,893,706 won.

(b) Conducting inspections (unfair punishment);

The sentence of a fine of five million won (the suspended sentence of a fine of five million won) of the lower court is too unfluent and unfair.

2. Determination

A. As to the defendant's assertion of mistake of facts and misapprehension of legal principles

(1) Whether it is an employee under the Labor Standards Act

(A) Determination as to whether a worker is a worker under the Labor Standards Act shall be made based on whether a contract form is an employment contract or a contract for employment, and whether a worker has a subordinate relationship with an employer for the purpose of wages at a business or workplace. Determination of whether a labor relationship is subordinate to the above mentioned above should be made based on whether the employer determines the contents of work and is subject to the rules of employment or the rules of employment, the rules of employment or the rules of employment, etc., and whether the employer is subject to considerable direction and supervision in the course of performing work, whether the employer is bound by the designation of work hours and work place, whether the labor provider is capable of operating his/her business on his/her own account, such as holding the equipment, raw materials or tools, etc., or having a third party employ a third party, and whether the employer has a superior economic and social status, such as the creation of profits and losses through the provision of labor, and whether the nature of remuneration is the nature of remuneration, whether the worker has a basic wage or fixed wage, and whether the employer has a superior economic and social status as an employee.

Since there is a large room, the mere fact that such points are not recognized should not readily deny the nature of workers (see, e.g., Supreme Court Decision 2009Da99396, Apr. 15, 2010).

(B) In light of the above legal principles, the following circumstances acknowledged by the court below were met: ① the damaged workers were in charge of delivery duties determined by the above company; ② the victimized workers were specifically ordered by the deputy head of the above company in the course of performing such duties; ② the victimized workers were prepared and submitted daily work logs for delivery duties; ③ the victimized workers were disadvantageous to the above company’s employees and their work logs; ④ the victimized workers were equal to those of other employees of the above company; ④ the victimized workers were paid a certain amount of monthly wages from the above company regardless of the delivery performance; ⑤ the damaged workers were paid from the above company, such as oil expenses, expressway expenses, heavy food expenses, etc.; ⑤ the victimized workers did not purchase the above company’s factory or the head of the above company’s office; ② the damaged workers did not use the above part of the company’s work logs with the above company’s comprehensive work logs, such as construction and repair of the company’s wages, and the employer did not use the above work logs to the above company’s own account.

(2) The amount of monthly allowances payable to the victimized workers.

In light of the following circumstances acknowledged by the aforementioned evidence, i.e., oil expenses, expressway expenses, heavy food expenses, etc. related to delivery duties, and the payment statement (Evidence No. 27, 28, 29) of daily employment income prepared by the above company for the purpose of tax return is calculated as the full amount of the rent paid to the damaged workers in full, in consideration of the fact that the above company's payment statement (Evidence No. 27, 28, 29 of the evidence No. 27, No. 29 of the record) is an amount under the pretext of the rent paid to the damaged workers each month in full, under the pretext of the rent paid to the damaged workers for their work. Accordingly, it is reasonable to view that the above company's payment under the pretext of the fixed rent paid to the damaged workers each month constitutes the wage paid to the damaged workers as the object of their work. Accordingly, this part of the defendant's assertion on other premise is without merit.

B. It is true that the prosecutor’s assertion of unfair sentencing is not less than 8,037,860 won in total, such as unpaid monthly allowances and retirement payments, etc. against the victimized workers. However, in full view of all the sentencing conditions including the following: (a) the Defendant has no same power; (b) the Defendant did not pay the said money in lump sum by asking questions on the legal interpretation related to the above employee nature; and (c) the Defendant appears to have expressed an intention to pay the said money according to the court’s judgment; and (d) the said money is also guaranteed by piracy, etc., the lower court’s punishment is too unjustifiable and unreasonable.

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Order of Suspension of Judge

Judges Kim Gin-type