[1] Criteria for determining whether an employee is a worker under the Labor Standards Act

[2] In a case where a foreigner who is an industrial technology trainee provides labor and receives money and valuables in the name of allowances at a business entity's workplace under the direction and supervision of the business entity, whether such foreigner can be deemed a worker under Article 14 of the Labor Standards Act (affirmative)

[1] Determination of whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the contract form is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether such a subordinate relationship exists should be made by comprehensively taking into account whether the contents of work are determined by the employer, whether the employer is subject to specific individual command and supervision by the employer, whether the working hours and the place of work are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker has the characteristic of work, whether the characteristic of remuneration is the object for the work itself, whether the basic wage or fixed wage is determined, whether the nature of remuneration is determined, whether the wage has the characteristic of the work itself, whether the wage has the nature of the work provided, whether the wage or fixed wage is the exclusive nature of the worker, whether the status of the worker is recognized by other Acts and subordinate statutes, such as the Acts and subordinate statutes on social security system, and the social and economic conditions of both parties.

[2] Even if a foreigner who was issued a visa for industrial technology training by the government was allocated as an industrial technology trainee to a domestic company subject to the industrial technology training system, and entered into a training contract with the target company, the contents of the contract are not merely limited to the training of industrial technology, but to provide a certain amount of money and valuables as ordered by the target company, and to receive a certain amount of money and valuables in return for work outside the prescribed hours, and accordingly, the foreigner is a worker under Article 14 of the Labor Standards Act if the foreigner provided labor to the target company under the direction and supervision of the target company, and received money and valuables in return for the allowance.

[1] Article 14 of the Labor Standards Act / [2] Article 14 of the Labor Standards Act

[1] Supreme Court Decision 94Da22859 delivered on December 9, 1994 (Gong1995Sang, 448), Supreme Court Decision 2000Do4901 Delivered on April 13, 2001 (Gong2001Sang, 1179), Supreme Court Decision 9Da5484 Delivered on June 26, 2001 (Gong2001Ha, 1681), Supreme Court Decision 2001Do2778 Delivered on August 21, 2001 (Gong201Ha, 2125), Supreme Court Decision 2001Do595 Delivered on July 12, 2005 (Gong2002Ha, 1992), Supreme Court Decision 205Du305379 Delivered on March 26, 2004 (Gong20595 decided March 29, 2005)

Plaintiff 1 and 15 others (Law Firm Quota, Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Korean Joint Island, Inc.

Daegu High Court Decision 2004Na5304 decided July 28, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Determination as to whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the form of the contract is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided the worker with work in a subordinate relationship for the purpose of wages at the business or workplace. Determination as to whether such subordinate relationship exists is determined by the employer, whether the contents of work are applied by the rules of employment or employment, and are subject to specific directions and supervision from the employer in the course of performing duties, whether the working hours and place are designated by the employer and are detained by the employer, whether the substitute nature of work such as providing the worker with a third party with the work, whether the characteristic of remuneration is the object of the work, whether the basic salary or fixed wage is determined for the work itself, whether the foreigner's continued provision of labor relations and the degree of exclusive employment to the employer, whether the foreigner's status is recognized in accordance with the Acts and subordinate statutes concerning social and economic conditions of the two parties, etc. (see, e.g., Supreme Court Decision 90Do19700 Decided, Apr. 20, 2019

After finding the facts as stated in its holding, the court below's decision is just in light of the above legal principles and records, and it is not erroneous in the misapprehension of legal principles as to facts against the rules of evidence, the recognition of workers under the Labor Standards Act and the Minimum Wage Act, or the status of industrial trainees under the Immigration Control Act, as alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-sik (Presiding Justice)