근로기준법위반등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of 1.5 million won.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. According to the evidence submitted by the Prosecutor of the misunderstanding of facts or misunderstanding of legal principles, E shall be deemed to have provided the Defendant with labor in a subordinate relationship for the purpose of wages even from December 2, 2015 to May 2016, and as to the difference between the wages actually received from January 2017 to March 2017 and the statutory minimum wage, the Defendant may be deemed to have had the intention to pay wages.
B. The lower court’s sentence of unreasonable sentencing (one million won of a fine) is too unhued and unreasonable.
2. Judgment of misunderstanding of facts or misunderstanding of legal principles (the part not guilty in the original judgment)
A. Whether a worker is a worker under the relevant legal doctrine ought to be determined in accordance with whether a worker, who is in substance more than the form of a contract, provided work to an employer for the purpose of wages at a business or workplace.
In this context, whether a dependent relationship exists shall be determined by comprehensively taking into account various economic and social conditions, such as the continuousness of the relationship to provide labor, the existence and degree of exclusive responsibility for the employer, whether an employer is subject to considerable command and supervision in the course of performing the work, whether an employer is designated working hours and working places, and whether an employer is bound by the employer, whether a labor provider is able to operate his/her business on his/her own account on its own, such as holding equipment, raw materials, working tools, etc. or having a third party employ and act on behalf of him/her, whether he/she has a risk, such as creation of profit and loss by providing labor, etc., whether he/she has the nature of his/her own work, whether his/her basic wage or fixed wage has been determined, whether he/she has a basic wage or fixed wage withheld, and whether or not he/she withheld the income tax.
(b).