2014dan70312 Wages

○ ○

Attorney Jeong Jin-ia, Counsel for the defendant-appellant

Monacu Camp, Inc.

Representative Director and Representative Director

Law Firm Barun (LLC)

Attorney Lee Gyeong-sub

September 15, 2015

November 17, 2015

1. The defendant shall pay to the plaintiff (designated parties) and the appointed parties a sum of 20% per annum from the start date of each of the "date of retirement" to the day of complete payment of the claim amount table of the plaintiff's claim amount in attached Form 1 to the plaintiff (designated parties) and the appointed parties.

2. The costs of lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Party’s assertion

A. The plaintiff (the appointed party)

The plaintiff (designated parties; hereinafter referred to as "the plaintiff") and the designated parties are workers under the Labor Standards Act who are directed and supervised by the defendant while working as the after-school computer library belonging to the defendant and provide labor, and receive a fixed amount of wages in return. Therefore, the defendant is free to pay to the plaintiff and the designated parties the total amount of retirement allowances and annual allowances indicated in the claim amount table in attached Form 1, 91, 235, and 848.

(b) the defendant;

The plaintiff and the designated parties are not workers under the Labor Standards Act.

2. Determination

A. Whether the Plaintiff and the designated parties constitute workers

1) Relevant legal principles

The determination of whether a worker is a worker under the Labor Standards Act ought to be based on whether the form of a contract is an employment contract or a contract for work, and whether a worker has a subordinate relationship with an employer for the purpose of wages at the business or workplace. The determination of whether a labor relationship is subordinate to the above ought to be made by the employer and the employer determines the contents of work, and is subject to the rules of employment or service (personnel), and is subject to considerable direction and supervision by the employer during the process of performing work, whether the employer designates working hours and working places and is detained by the worker, whether the worker is capable of operating his/her business on his/her own account, such as possessing equipment, raw materials, work tools, etc., or employing a third party to perform his/her duties, and whether the risks, such as the creation of profits and losses through the provision of labor, and the nature of remuneration, whether the basic wage or fixed wage was determined by withholding taxes, and whether the employer has an exclusive economic status as an employee, such as social security system or social status, should not be determined easily by taking account of the following circumstances.

2) Facts of recognition

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1 through 4, 6 through 13, Gap evidence 5-1 through 9, Gap evidence 14, and 15, and Eul evidence 1 through 30:

A) The Defendant is a company established for the purpose of educational service business, etc., and the Plaintiff and the designated parties entered into a contract with the Defendant to commission of a professional instructor of computer classrooms (hereinafter “instant contract”) from around 2006 to 2014, and accordingly, they proceed with after-school classes to an elementary school designated by the Defendant as entrusted by the Defendant. The main contents of the instant contract are as follows.

The following:

(1) The plaintiff and the designated parties need to change the project area due to personal circumstances, such as change of residence.

at the request of the defendant, and the defendant may mediate in consideration of all the circumstances (Article 3).

(2) The plaintiff and the designated parties shall conduct to enhance the learning effect of the members entrusted to the defendant.

prescribed transmission education shall be conducted in good faith (Article 4)

③ The Defendant shall pay the fees to the Plaintiff and the designated parties on the 15th of the following month, and the method of calculating such fees.

the sum of the minimum fees, performance fees, and other fees, and the minimum fees among them shall be a professional instructor.

1. Determination of KRW 1,200, KRW 000, KRW 1,000 for guidance instructors, KRW 00, and KRW 000, and performance fees shall be for performance rates (number of performance rates) for sales.

amount determined by multiplying the highest of the birth rate or the participation rate by the automatic decision), and

Other fees for career service, teaching material sales commission, discount fees, and special performance fees.

(Article 6).

(4) The plaintiff and the designated parties shall be subject to compelling reasons, such as illness or an unforeseen accident during their business activities.

If it is temporarily unable to handle the entrusted affairs, it shall be notified in advance to the defendant and shall be made to a third party.

(Article 7).

(5) The plaintiff and the designated parties are managing members due to serious causes attributable to them in handling entrusted affairs.

Where the existence of a contract is significantly decreased or where it is difficult to continue to exist under social norms;

Defendant may terminate the contract with a written notice prior to one month (Article 11(3)).

B) After-school instructors, both the Plaintiff and the designated parties prepared a class program and a class schedule once every two months, sent them to the head of the Defendant’s office, sought confirmation, and subsequently revised the program, if any, and subsequently proceed with the course by supplementing some of the revised matters. From the Defendant, the Plaintiff and the designated parties provided various published matters through the Defendant’s dlimb website, etc., and the vision and detailed manuals of the computer class operator as a manager of the computer class.

C) In the event that the Defendant is a guidance instructor with less than one year experience for the instructors, the Defendant received education for 1-2 day-to-day newly conducted at the Defendant’s head office, 1-day internship education for 2-day internship education, and 2-day continuing education for 1-year period conducted at the Incheon branch office. In the case of a specialized instructor with not less than one year of experience, the Defendant received education for 2-day gambling conducted at this company.

D) Instructors worked at an elementary school designated by the Defendant: 7: 40 am to 8: 40 am, and worked at an elementary school; 13:0 am to 16 am, and 17:0 am going to work for the school; and 8:0 am to 00 am, and 8:00 am going to work for the school at around 8:30 am, and 8:0 am to work for the school at around 15:0 am and was reported to the head of the education office, etc. in the absence of the long time.

E) Instructors were able to stay in the computer room in a school without a basic duty, and prepared a student recruitment plan, a notice, a posters, and an individual study report, etc. In particular, according to the defendant's instruction, the instructors prepared a so-called "report on the opening of a school informing the school of how to operate after-school classes in accordance with the defendant's instructions, submitted it to the defendant upon the settlement of the principal. In the event that a school is unable to do so due to personal reasons, the instructors reported to the head of the education office to the head of the education office and provided a supplementary class at the end of the week upon request of another after-school instructors, and the instructors did not have been able to provide a substitute class at their own discretion

F) Instructors were engaged in a course by using computers and equipment provided by the Defendant, and teaching materials designated by the Defendant, and, if necessary, reported it to the head of the education office separately.

G) Meanwhile, according to the “private participatory school distribution/operation Agreement” concluded between the defendant and the school, the school may require the defendant to replace an instructor. The defendant notified the instructor through the head of the education office or the head of the branch to change the school and changed the instructor into another.

H) Instructors received fixed minimum fees of KRW 1,00 per month for guidance instructors, KRW 00 per month for specialized instructors, KRW 200 per month, and KRW 00 per month for specialized instructors. However, instructors received additional performance fees, other fees, etc. according to the number of students, the rate of participation, and the skills of instructors.

I) The Defendant did not purchase so-called four major insurance for instructors, such as health insurance, national pension, employment insurance, and industrial accident compensation insurance, and withheld business income tax from instructors.

3) Determinations

As seen earlier, ① Computer instructors belonging to the Plaintiff and the Defendant were to work in a school designated by the Defendant to leave P.M., and perform incidental work, such as computer lessons and student recruitment plans until they leave the school. Due to the nature of their work, it is not possible for instructors to leave the school for a long time. In the absence of working hours, it seems that instructors could not freely decide the place of school hours and classes after consultation with the Defendant or the school. ② The Defendant provided instructors with various manuals on the performance of their work through education and meetings, or provided them with various kinds of teaching materials on the premise that it is difficult for the Defendant to use them at their own discretion, and the Defendant provided them with training materials on the premise that it is difficult for them to use them at their own discretion, ③ The Defendant provided them with training materials on the premise that it is difficult for them to use them at their school, ③ The Defendant provided them with training materials on the premise that it is difficult for them to use them at their own discretion, and ③ the Defendant provided them with training materials on the basis of social norms, and the Defendant provided them with the minimum amount of 00 months and 10 months.

B. Defendant's duty to pay retirement allowances, etc.

As long as the plaintiff and the designated parties are recognized as workers, there is no dispute between the parties that the defendant's amount of retirement allowances and annual allowances to be paid to the plaintiff and the designated parties becomes the money indicated in the claim amount table for each plaintiff's claim amount table. Thus, the defendant is obligated to pay to the plaintiff and the designated parties the compensation for delay calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from the date of full payment of each claim amount table for each plaintiff's claim amount table and the date of retirement.

3. Conclusion

Therefore, the claim of this case by the plaintiff and the designated parties is justified and it is so decided as per Disposition.

Judges Kim Jong-Gyeong

List of Appointedmen

1. High ○○ and 13 persons;

A person shall be appointed.