(영문) 서울고등법원 2017.7.7.선고 2017나2010952 판결

(a) The amount of retirement allowances listed in the “Retirement Allowance Calculation Table” written on the Plaintiffs, excluding Plaintiff O and P, as well as the amount calculated by 6% per annum from March 1, 2014 to July 7, 2017, and 20% per annum from the following day to the day of full payment.

B. The phrase “retirement allowance calculation table” in the attached Table to the Plaintiff’s 5,515,00 among the relevant money written on the basis of the following: (a) 6% per annum from March 1, 2014 to July 7, 2017; (b) 20% per annum from the following day to the date of full payment; (c) 6% per annum from November 11, 2016 to July 7, 2017; and (d) 15% per annum from the following day to the date of full payment;

C. The amount indicated in the “retirement Allowance Calculation Table” column to Plaintiff P, as well as the amount calculated by the rate of 6% per annum from March 15, 2014 to July 7, 2017, and 20% per annum from the following day to the day of full payment:

sub-payment.

2. The plaintiffs' remaining appeals are dismissed.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant.

4. The part ordering the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the court of first instance is revoked. ① The defendant shall pay to each of the plaintiffs listed in the separate sheet of "Retirement Allowance Calculation sheet" as stated in the separate sheet of "Retirement Allowance" to the plaintiffs except the plaintiff, 20% interest per annum from March 1, 2014 to the day of complete payment. ② The relevant amount entered in the separate sheet of "Retirement Allowance Calculation sheet" as stated in the separate sheet of "Retirement Allowance" as stated in the separate sheet of "Retirement Allowance Calculation sheet to the plaintiff," and the amount of KRW 5,515,000 interest per annum as to KRW 20% per annum from March 1, 2014 to the day of full payment to the day of full payment.

Reasons

1. Basic facts, 2. The plaintiffs' assertion

This Court’s reasoning is as follows, except for the addition of the following to the seventh fifteenth 15th tier of the judgment of the court of first instance, and therefore, it is identical to the corresponding part of the judgment of the court of first instance (paragraphs 1 and 2). Thus, it is acceptable in accordance with the main sentence of

9. Termination, etc. of Party A;

In any of the following cases, A may terminate the contract immediately:

(1) Where a considerable number of the production products supplied by Eul do not meet the specifications and inspection criteria set forth by Gap, making it difficult for Gap to produce completed products, or delayed to complete the production of completed products and causing property damage to Gap.

(2) Where Eul intentionally or by gross negligence delays in the supply of its products and causes property damage to Gap;

(3) Where the supply of crops is difficult due to the death of Eul or the death or injury of Eul;

3. Whether the plaintiffs were the employees of the defendant company

A. 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 employment, and whether a labor provider has provided labor in a subordinate relationship with an employer for the purpose of wage in the business or workplace. The determination of whether a labor provider is a subordinate relationship ought to be based on ① the content of work; ② the employer is subject to the rules of employment or service; ② the employer is designated as working hours and working place; ② the employer is bound by the employer; ③ whether a labor provider is capable of operating his/her business on his/her own account; ④ whether a labor provider has knowledge of the risks, such as the creation of profit and loss through the provision of labor; ⑤ whether a labor provider has the nature of remuneration, the nature of remuneration, the existence and degree of the continuity of the provision of labor relationship and the exclusive nature of the employer; ② whether the employer is subject to considerable direction and supervision in the process of performing his/her duties; ③ whether the employer is subject to the recognition of the status of the labor provider as an employee under the Act on Social Security System.

(b) Whether the employee is a worker;

For the following reasons, it is reasonable to view that 'the plaintiff retired from office as employee of the defendant company regardless of the form or content of the production supply contract of this case and the subsidiary contract of this case.'

1) The fact that the Defendant Company determined the content of duties and directed and supervised considerable matters, and that the Plaintiffs were bound by the contractual relationship to the extent equivalent to the rules of employment of the Defendant Company

A) Facts of recognition

In full view of the evidence adopted earlier, evidence Nos. 7, 9, 10, 13, evidence Nos. 16 through 19, evidence Nos. 16 through 3, evidence Nos. 41 and 46, and evidence Nos. 41 and 46, the following facts may be acknowledged.

(1) The developments leading up to the conclusion of the instant crop supply contract and subsidiary contract

(A) Group V belonging to the Defendant Company was composed of W, T Co., Ltd. (hereinafter “T”), X, X, Y, Z, Z, AA, and the Defendant Company. The Defendant Company, from around 1980 to December 1997, was supplied and sold orally by its subcontractor from its subcontractor to its subcontractor. Since the so-called “IMF economic crisis”, the Defendant Company, from January 1, 1998, established a production plant on the first floor below the headquarters AB located in Gangnam-gu Seoul, to convert into a multi-variety production system, and manufactured and sold orally.

(B) The Plaintiff G, F, M, L, N, and J were employed by the Defendant Company from January 1, 1998 to January 1, 1999 and performed low work as an employee. The Defendant Company decided to convert the Defendant Company’s work (a technician engaged in locking work) into the form of a contract. Accordingly, the said Plaintiffs entered into the instant production supply contract with the Defendant Company and registered its business, and carried out low work. The rest of the Plaintiffs concluded the instant production supply contract with the Defendant Company between 2000 (or 1999) and 2009, and entered into the instant production supply contract with the Defendant Company and conducted low work.

There was no big difference in the form or method of providing the plaintiffs' labor before and after the conclusion of the production supply contract and subsidiary contract of this case.

(2) Organizational structure of the defendant company

(A) The Defendant Company transferred the oral manufacturing plant in order of the building located in Gangnam-gu Seoul AB ? the building located in the Seocho-gu Seoul Metropolitan Government AC ? the building located in Gwangju City (2008 around) ? the R located in Gwangju City (2010 around). The Defendant Company used T(AE) and AD factories and R factories as companies located in the same V Group. There was no significant change in the process or form of the Plaintiffs’ duties before and after the relocation of the factory.

(B) 2nd underground floor: A warehouse, 2nd underground floor, 1st underground floor, 1st underground floor, 2nd underground floor, 1st underground floor, 3rd floor: a workplace, a management office, a foundation office, 4th ground floor: A meeting room, a development room, and a design room, consisting of a room, a design room, and a design room.

① On the ground level AP, the Defendant Company’s 10 team and the 7th PP team affiliated to T were employed. The head of the AF division affiliated with the Defendant Company was stationed in this field, and the Defendant Company managed APs. ② On the ground level AP work site (in principle, the 1st team) the lower 17-18 employees affiliated with the Defendant Company, and the 12 employees affiliated with TW work site. The 12 employees affiliated with the Defendant Company were stationed in the 1st century work site, and the 17-18 employees affiliated with the Defendant Company and the 12 employees affiliated with the 12 employees affiliated with the Defendant Company. The 1st executive director affiliated with T was stationed in this field, and the 1sts and low st

(C) The oral manufacturing process of the Defendant Company was conducted in the order of “(1) preparation of work instructions in accordance with orders, product planning, and design ? ② production of samples ? ③ ③ Foundation work (the work of cutting the original body or bamboo in accordance with the work instructions) - ① the work of cutting the original body or bamboo into a verbal form (the work of cutting the original body or the bamboo that was the foundation into a verbal form) - 5 the work of cutting the original body or bamboo (the work of cutting the body or the bamboo sealed into the foundation, and the work of building the body or bamboo sealed into the foundation) - 6 the work of cutting and examination.

이에 맞게 R 공장에서는 '①0 3층 디자인실에서 최초 작업지시서 작성 → ② 2 층 개발실에서 견본품 제작 → ③ 본사에서 피고 회사 상무2) 또는 U에게 작업지시서 발송 → ④ 작업지시서에 따라 피고 회사 소속 AF 부장이 1층 재단실에 재단 의뢰 → ⑤ 재단 완료 후 원단 등을 갑피공에게 전달 → ⑥ 갑피작업 완성품은 작업지시서와 함께 바구니에 담긴 채 U에게 전달 → ⑦ U가 피고 회사와 T 소속 저부공에게 바구니를 전달하면서 저부작업 의뢰 → 8 저부공의 저부작업 완료 →→ ④ 검수 및 출고 단계' 순으로 작업이 진행되었다. 이와 같은 작업 과정 중 갑피작업과 저부작업을 제외한 나머지 과정은 모두 피고 회사 소속 근로자에 의해 처리되었다.

(D) The organization of the Defendant Company was composed of overall control, production, and purchase (two persons), the Foundation (two persons), the management of Class A (2), the production and management (2 persons), the thought and packing (3 persons), and the assembly management (1 persons). The duties of the Plaintiffs are 'Control' or 'Production and Management'.

(3) The business form of the plaintiffs and the direction and supervision of the defendant company

(A) U, taking into account the degree of difficulty of work, the individual ability, experience, etc., assigned the volume of work to the lower-class unit, and then ordered the lower-class unit work. 3) As such, U allocated the lower-level unit work at an average of 25 capacity per day to the lower-class unit work. Such right of allocation was wholly exercised by the Defendant Company or U.S.

(B) At the time of giving a low work order, U attached a work order (or an order measuring instrument) to the finished product of the AP work. The ‘work order' written oral design number, external feet, inner feet, locker, window, product material, color, size, delivery date, quantity, etc., and the specific matters necessary for the production of the product and the matters of attention ('non-satis, etc.'). The Defendant Company kept samples at the work site, and manufactured the product in a way that the low-satisfy works are seen as directly samples or asks U about production methods, etc. In the event that the low-satisfy works are performed in violation of the work order or the samples, U intended to instruct U to correct them at the work site.

(C) When manufacturing a new product, U or an executive officer or employee of the Defendant Company explained the relevant product to the low-class public and explained the content and process of the work. In relation to the oral design, the necessary precautions were delivered. In the manufacture of a new product, U or U.S or an executive officer or employee of the Defendant Company instructed correction of the defect, etc. when confirming that “the low-level public official works as sample at the work site” was “the same as sample.”

If it is necessary to revise a paroton, U has collected the opinions of the associates, and U has corrected the immediately a paroton at the work site.

(D) If it is necessary to work in preference to other products, the defendant company or U has changed the order of work, etc. or adjusted the working speed (the defendant company determined the order of work, etc. in a way that stated "in the column of work instruction" as "in the manner of manufacturing" in the column of work instruction).

(E) On the completion of the lower-level work, the identification mark of the lower-level shop working. After completion of the lower-level work, an employee belonging to the Defendant Company (three (three) engaged in the inspection and packing work on the first floor site. In the event that the lower-level work was carried out or the product was defective in contravention of the work instruction or sample, an employee belonging to the Defendant Company (the inspector) delivered the pertinent product to U, and U, based on the identification mark, ordered the lower-level shop, who carried out the relevant work, to correct the defect.

B) Determination

(1) The Defendant Company entirely designated the Plaintiffs’ work volume and work performance, and the Plaintiffs were required to work in accordance with the work instruction and sample stipulated by the Defendant Company. In the instant production supply contract and subsidiary contract, “the Plaintiffs should make oral works in accordance with the Defendant Company’s specifications and standards for inspection, and if they work contrary thereto, the Defendant Company may terminate the said contract.” (The Defendant Company determined the work content)

(2) Even though the Plaintiff stipulated in the production supply contract and accessory contract of this case that “the Plaintiff is not bound by the rules of employment, etc. of the Defendant Company,” the instant production supply contract and subsidiary contract of this case contain “all kinds of directions related to work, grounds for disciplinary dismissal, etc., as stipulated in the rules of employment,” and “reasons for termination of a contract corresponding to the grounds for disciplinary dismissal, etc.” (the Plaintiff was bound by the contractual relationship corresponding to the rules of employment of the Defendant Company). (

(A) The Plaintiffs worked in the “Defendant Company’s factory” under the management and supervision of the executives or employees of the Defendant Company who work in the “Defendant Company’s factory.” In light of the fact that the Defendant Company requested oral production in the form of outsourcing to an external company, if there is no need for specific control or instruction on the Plaintiffs, the Defendant Company did not take such form of work.

(B) The Defendant Company or the employee of the Defendant Company specifically instructed the Plaintiffs’ work contents and cautions through work instructions, samples, etc., and set the order or speed of work. In the event that the Plaintiffs work contrary thereto, the officers or employees of the Defendant Company ordered the correction of defects at the work site or at the inspection stage. In particular, when manufacturing new products, the Defendant Company directly and specifically participated in the Plaintiffs’ work contents, etc. (i) if the Plaintiffs fail to comply with the above instructions, they could not receive remuneration related to the relevant work; (ii) such violation constitutes grounds for termination of the contract; (iii) the Defendant Company exercised the right to share work quantity directly related to the Plaintiffs’ remuneration; and (iv) the Plaintiffs’ exclusiveness to the Defendant Company, in light of the degree of the Plaintiffs’ exclusiveness to the Defendant Company.

(C) A series of processes from the former design to the delivery of products were conducted in the factory building of the Defendant Company. The Plaintiffs’ process was a key process related to oral production, which was divided into an important process from the organization of the Defendant Company. Of the series of oral production processes, both the Defendant Company’s officers or employees were processed, except the Defendant Company’s work and the lower work.

① In light of the fact that, within the same factory building for oral production, various workers, including the plaintiffs, shared various processes with executives and employees belonging to the defendant company and employees, ② the defendant company bears the ultimate responsibility for quality assurance with respect to consumers, ③ the defendant company’s executives and employees belonging to the defendant company or 2-3 workers to the 17-18 workers were managed, etc., the defendant company has a strong incentive to make oral production in an efficient and effective way through the direction and supervision of the plaintiffs.

2) Designation of working hours and working places of the Defendant Company

A) Facts of recognition

According to the evidence adopted earlier (the fifth written evidence, the same hereinafter), the following facts can be acknowledged:

(1) Since main facilities, equipment, etc. necessary for low-level work were kept in the factory of the Defendant Company, there was no low-quality work outside the Defendant Company’s factory.

(2) In principle, the Defendant Company ordered the work to the lower court in the form of “day allocation” and “the completion of work on the day.” Although the Defendant Company did not explicitly manage the work to the lower court’s workplace, the lower court, as the employee of the Defendant Company, worked in a fixed work period from every week to every day, as the employee of the Defendant Company, to receive remuneration. Although the work hours of the lower court did not vary, most of the lower court worked in work hours before the lower court’s entry into work at least seven hours before the lower court. Although the work is not completed on the day, the lower court left the work, most of the allocated work hours were not allocated.

(3) Although there is no express provision, in the event of early retirement or absence from work, U.B. U.S. executives or employees belonging to the company were informed. There was almost little absence of absence from work without permission.

(4) Alternatively, the work required of the employee employed by the Defendant Company and the work required of the employee employed by the Defendant Company was the same. The work required of the employee employed by the Defendant Company did not provide labor on the summer leave or holiday leave.

B) Determination

(1) The Plaintiffs’ work place was fixed to Defendant Company’s factory, and the Plaintiffs were not able to choose the work place.

(2) Although it is not strict as the employees of the Defendant Company, the Plaintiffs’ work hours and work hours have been set in line with the circumstances of the Defendant Company in order to enhance the work uniformity and unity of the employees belonging to the Defendant Company.

(3) Since the fixed volume of personnel is handled by limited persons, the hours of low-quality work, such as the Plaintiffs, should be ensured stable. In the event that the Plaintiffs are absent or neglect to work without permission, the Defendant Company may reduce the amount of work directly related to the Plaintiffs’ income and may terminate the instant product supply contract, depending on the circumstances. Therefore, it appears that the Plaintiffs, other than the Defendant Company, who did not have an import source, could not decide whether to work in accordance with their independent judgment, appears to have

3) The plaintiffs did not independently operate their business on their own account

In full view of the following circumstances acknowledged as above, the Plaintiffs cannot be deemed to have operated their business on their own account independently.

A) Although the Plaintiffs used personal equipment, such as knife, knife, high-repair, and knife, the Plaintiffs used the equipment provided by the Defendant Company. The Defendant Company provided the Plaintiffs with major equipment, such as knife, wire-up, knife, knife, knife, knife, knife, knife, and knife machinery.

B) Article 7 of the subsidiary contract provides that “the plaintiffs may work for a third party by employing a third party.” ① The plaintiffs testified to the effect that they worked at the factory of the defendant company and provided labor under the management and supervision of the executives or employees belonging to the defendant company, ② U also did not work for a third party, it is difficult for the plaintiffs to employ a third party and work for the third party.

C) In the following respect, the instant production supply contract and subsidiary contract are deemed to have been prepared to create the appearance of the contract.

(1) When the Defendant Company entered into the instant production supply contract and its accessory contract, it stated that the Defendant Company is not subject to Article 664 of the Civil Act, Article 664, "not subject to the exclusive control and supervision of the Defendant Company," "may sub-contract the Defendant Company," unlike the substance," and "it is difficult to find in the general form of contract for forest processing," but this is a provision that is difficult to find in the general form of contract for forest processing. In light of the fact that from around 2004, the issue was whether the Defendant Company was an employee of the Defendant Company’s low-quality and Party A, it is presumed that the Defendant Company intentionally stated the above phrases in order to avoid its employee status.

(2) The Defendant Company deducted the user fee or equipment fee from the remuneration only after a certain period of time has elapsed since the conclusion of the instant contract for the supply of the instant products and the subsidiary contract. The amount was also rarely changed, and there is sufficient doubt that the amount was set in the form of a certain appearance in order to make a certain appearance. The text of the contract was written in the way of a new entry only on the date without any special change.

(3) According to business registration, the Plaintiffs paid value-added tax, but the Defendant Company paid value-added tax on behalf of the Plaintiffs en bloc.

4) The plaintiffs did not bear any risk on their own.

According to the above-mentioned evidence, the plaintiffs' remuneration was determined in the form of multiplying the quantity of oral speech by the sufficient price, taking into account the degree of difficulty of the work, and ② The plaintiffs did not perform their duties, such as receipt of the oral manufacturing volume or the oral sale, etc., ③ whether the oral sale was made or not, or whether the sale price was caused by the loss, and the fact that the plaintiffs received remuneration according to the quantity of work, regardless of the degree of difficulty of the work.

According to the above facts, it is difficult to view that the Plaintiffs have become aware of the risks, such as the creation of profits and the occurrence of losses through the provision of labor services.

5) The nature of remuneration

A) As seen earlier, the Plaintiffs received the remuneration determined according to the amount of work, the amount of work was determined by the Defendant Company, and the amount of work was affected by the sexual and non-legal instruments, but the Plaintiffs’ remuneration was replaced by a fixed number of wages. Such bonus in the form of performance-based bonus is evaluated by the amount and quality of labor, and is in the nature of wages, which are the remuneration for labor.

B) ① The fact that the Defendant did not withhold the Plaintiffs’ labor income tax, and ② the fact that the Plaintiffs paid the value-added tax or the business income tax after the Plaintiffs’ business registration was completed does not conflict between the parties.

① Some Plaintiffs did not change the form of labor provision when they pay the labor income tax or pay the business income tax as the employee of the Defendant Company; ② Defendant Company paid the Plaintiffs’ value-added tax en bloc; ③ in that the Defendant Company had induced the Plaintiffs’ business registration, the circumstance that the Plaintiffs did not pay the labor income tax cannot be deemed as an important factor to determine whether they were workers.

6) Continuation of the provision of labor, the Plaintiffs’ exclusive affiliation to the Defendant Company

A) Although the continuity of the provision of labor was set as one year in the production supply contract and subsidiary contract of this case, the Plaintiffs can recognize the continuity of the provision of labor in that the provision of labor was limited to the Defendant company for a long period of four or fifteen years.

B) According to the evidence adopted prior to the Plaintiffs’ exclusive nature with respect to the Defendant Company, although the Plaintiffs did not prohibit the Plaintiffs from concurrently running their businesses in the instant production supply contract and subsidiary contract, it can be acknowledged that the Plaintiffs did not deal with the same or similar businesses other than the business of the Defendant Company or the companies within the same V Group (the Plaintiffs could not perform the business of another company).

① Considering that T was a company within the same group as the Defendant Company, ② the Defendant Company used the same factory as T, ③ the Defendant Company’s low-quality and T’s low-quality work together in the same factory as T, ④ U has managed the Defendant Company’s low-quality and T’s low-quality work together, the Plaintiffs’ exclusive applicability to the Defendant Company cannot be denied solely on the sole basis that the Plaintiffs managed part of T’s work.

7) The fact that the Defendant Company was recognized as an employee under the Social Security System Act and did not subscribe to the so-called 'fourth insurance' for the Plaintiffs is not a dispute between the parties. Considering the aforementioned overall status of the Plaintiffs and the Defendant Company, the Plaintiffs’ work environment, and the circumstances leading to registration of business after the retirement of the Defendant Company, it is insufficient to reverse the fact that the Plaintiffs were the employees of the Defendant Company.

4. Obligation to pay retirement allowances of the defendant company;

Since the plaintiffs retired from office as an employee in the defendant company, the defendant company is obligated to pay the retirement allowance to the plaintiffs. The fact that the retirement allowance to be paid by the defendant company to the plaintiffs is the same as each relevant money in the "retirement Allowance Calculation Table" column is written. There is no dispute between the parties.

Therefore, the defendant company is obligated to claim 10% of the annual retirement allowance under the Commercial Act from March 1, 2014 to July 7, 2017 as to whether the defendant company is obligated to claim 6% of the annual retirement allowance from 10th day to 20% of the annual retirement allowance under Article 37(1) of the Labor Standards Act and Article 17 of the Enforcement Decree of the same Act from 17th day to 20% of the annual retirement allowance from 14th day after the date of full payment as stated in the "Retirement Allowance Calculation Table" with the corresponding amount as retirement allowance, and from 20th day to 17th day after the date of full payment, 10% of the annual retirement allowance from 20th day after the date of each of the following 7th day after the date of full payment, 20% of the annual retirement allowance from 16th day after the date of each of the following 7th day after the date of full payment.

5. Conclusion

Thus, the plaintiffs' claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. Therefore, since the part of the appeal by the plaintiffs which partially accepted the appeal by the plaintiffs and the conclusion different from this conclusion in the judgment of the court of first instance is unfair, the defendant company is ordered to pay the above money, and the remaining appeal by the plaintiffs is dismissed as it is without merit

Judges

The presiding judge, senior judge

Judges Cho Young-young

Judges Juk-man

Note tin

1) For convenience, determine R factories in the same manner.

2) The plaintiffs asserted that the regular director of the defendant company was AF at the time of "the defendant company." The "AF, the chief of the defendant company," and the Dong name.

Acknowledgement is not clear.

3) Defendant Company’s 16 pages of preparatory documents dated September 13, 2016

4) On the premise that the Plaintiff constitutes the employee of the Defendant Company, the Plaintiffs shall retire as recognized by the Defendant Company.

The "amount less than 1,00 won out of the direct payments" shall be claimed as retirement allowances.

5) The Plaintiff’s retirement allowance of 1,025,000 in the application for change of the purport of the claim and the cause of the claim made on November 9, 2016 of the instant case

at the beginning of the previous claim and the damages for delay of the additional claim

had been.

심급 사건

-서울중앙지방법원 2017.1.19.선고 2016가합526693

서울고등법원 2017.7.7.선고 2017나2010952

-대법원 2018.11.29.선고 2017다252079

참조조문