[2] The case holding that an advertising business operator engaged in the business of receiving advertising commission and advertising fee constitutes a worker under the Labor Standards Act

[3] The case holding that although there are provisions related to the deposit and repayment of advertising fees in a written employment agreement submitted by a business employee to the advertising company and the written employment agreement, the business member has a duty to compensate for damages when he inflicts damages on the company by intention or negligence in handling the business operator's entrusted affairs, including the duty to pay attempted advertising fees and the fee for advertising fees, and it does not provide that the business operator has a duty to pay advertising fees on behalf of the advertiser

[4] The case holding that it cannot be deemed that an advertising business operator made a direct repayment of the outstanding amount due to the issuance of promissory notes with the attempted advertising fees at the face value at the request of the company to which he belongs, or that he had agreed to accept the outstanding amount due

[2] The case holding that an advertising business operator engaged in the advertisement consignment and the advertisement fee collection business constitutes a worker under the Labor Standards Act

[3] The case holding that although there are provisions related to the deposit and repayment of advertising fees in a written employment agreement submitted by a business employee to the advertising company and a written employment agreement, it is only the business member's duty to pay the fees for attempted advertisements and the duty to compensate the company for losses caused by intention or negligence in handling the advertisement entrusted affairs, including the fees for advertisements, and it does not provide that the business member has the duty to pay advertising fees on behalf of the advertiser.

[4] The case holding that it cannot be deemed that an advertising business operator made a direct repayment of the outstanding amount of advertising fees, or agreed to accept the obligation, of the issuance of promissory notes with the attempted advertising fees at the request of the company to which the advertising business operator belongs

The issue of whether a worker is a worker under the Labor Standards Act, regardless of the form of a contract, shall be determined by whether a worker has provided labor in a subordinate relationship with the employer for the purpose of wages. The determination of whether a worker is determined by the employer and is subject to the rules of employment, service regulations, personnel regulations, etc., and is specifically and directly directed and supervised by the employer in the course of performing his/her duties, whether the employer is designated working hours and place of work, whether the remuneration is owned by the employer, whether the remuneration has the nature of the worker itself, whether the basic salary or fixed wage is determined, whether the wage has the nature of the worker itself, whether the wage has the nature of the wage, whether the wage is withheld from the wage income tax, whether the status of the worker has the continuity and degree of the labor provision relationship, whether the status of the worker has the exclusive nature to the employer, and whether the economic and social conditions of the Parties should also be considered (see Supreme Court Decision 97Da56235, Feb. 9, 199).

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below determined as follows: (a) according to the employment agreement prepared and submitted by the defendant and submitted to the plaintiff company, the president takes charge of all kinds of duties of the non-permanent employees as well as their employment and dismissal; and (b) if the non-permanent employees fail to faithfully perform their duties and fall under reasons for dismissal, it has the authority to take personnel measures; and (c) the reason for dismissal is determined as "if the absence and absence without permission for at least three times a month or for at least two consecutive days, is considerably negligent; (d) the high-ranking employees of the plaintiff company takes charge of duties by supervising the employees to observe the commuting hours and reporting their work status to the employees; (e) employees including the defendant received identification cards from the plaintiff company; and (e) employees including the defendant have joined the National Pension Service and Medical Insurance Association with the plaintiff company as its workplace; and (e) employees have entered into an advertising contract in the name of the plaintiff company, and (e) the defendant has issued the plaintiff company's rights and interests to whom the plaintiff was paid.

Examining the relevant evidence in comparison with the records, the court below’s fact-finding and judgment are just in accordance with the aforementioned legal principles, and there is no violation of the rules of evidence or any misapprehension of the legal principles as to workers under the Labor Standards Act.

2. Determination as to whether the Defendant embezzled part of the advertising fees collected from the advertiser

According to the reasoning of the judgment of the court of first instance cited by the court below, since the plaintiff company's business employees received benefits in proportion to their respective advertisements and paid advertising fees for the advertisements published in the month by the end of the following month, all of the plaintiff company and its business employees focused on the total amount of advertising fees that should be deposited in the month rather than the specific advertising fees. Therefore, it is true that the business employees do not specify the advertising fees received from an advertiser when paying the advertisement fees to the plaintiff company. If the business employees deposit only the estimated amount of deposits in the relevant month, the specific details were not confirmed by the plaintiff company and the details are different even if they are different, the defendant also accepted them. The court below determined that the defendant deposited 495,000 won as advertising fees in the account book even if the 1995 advertising fees for the non-party ○○○○ in accordance with such deposit practice, and that the defendant did not deposit the remaining amount of the account books with the plaintiff's remaining advertising fees in the account book, and that the defendant did not have any other evidence that the defendant did not deposit the remaining amount in the account book.

Examining the relevant evidence in comparison with the record, the fact-finding by the court below is just, and it cannot be said that there was an error of misconception of facts against the rules of evidence.

3. Determination as to whether the Defendant agreed to pay the outstanding amount directly as advertising fees

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below determined that the defendant's duty to compensate for damage is not included in the duty to pay advertising fees on behalf of the advertiser, and the above duty is not included in the obligation to pay advertising fees on behalf of the advertiser, and the above decision of the court below is acceptable in light of the records, and there is no error in interpreting the duty to pay advertising fees on behalf of the advertiser, and there is no error in interpreting the duty to interpret the duty to pay advertising fees and the employment agreement.

Meanwhile, according to the reasoning of the judgment of the court of first instance as cited by the court below, the court below acknowledged the fact that the defendant prepared a promissory note (Evidence A No. 1) stating the outstanding amount and the outstanding amount as at the time of payment as at face value, and submitted it to the plaintiff company on Nov. 3, 1995, the court below held that the defendant is not liable to compensate the plaintiff company for damages since it is reasonable to deem that the defendant prepared the promissory note as at Feb. 28, 1996 without any justifiable reason, in light of the circumstances leading up to the fact that the defendant neglected to perform the business of collection of advertising fees from the plaintiff company and prepared the promissory note as at Feb. 28, 1996 without any negligence.

According to the records, the plaintiff neglected to pay advertising fees to advertising members including the defendant, etc., and ordered them to pay the outstanding amount, and accordingly, the defendant prepared and delivered the above promissory note in the sense that the defendant confirmed the outstanding amount up to that time (the statement of Eul and the testimony of non-party 1 and non-party 2 as witness of the first instance trial). In light of the circumstance where the above promissory note was prepared and the defendant is in the original status of workers, it is not sufficient to recognize that the defendant agreed to pay the outstanding amount directly or to accept the obligation. In addition, the above promissory note was issued on the premise that the defendant is liable to pay the outstanding amount, and thus, in this case, the defendant can refuse the payment of the outstanding amount on the ground that the above promissory note was issued on the premise that the defendant is liable to pay the outstanding amount.

The reasoning of the court below is not appropriate, but is just in its conclusion rejecting the plaintiff's assertion. Accordingly, the ground of appeal that the court below erred by mistake of facts or misapprehension of legal principles against the rules of evidence is without merit.

4. Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)