The case holding that there is no establishment of an employer and an employee relationship under the Labor Standards Act.

In general, in order to establish a labor relationship between an employer and an employee, an employer is not established in cases where an employer is engaged in mining operations under a sort of labor contract, since there exists an explicit or implied agreement for the purpose of providing an employer with labor, or there exists any other legal basis.

Articles 17 and 28 of the Labor Standards Act

November 14, 1972, 72Da895 decided Nov. 14, 1972 (Supreme Court Decision 10277, Supreme Court Decision 203Du104 decided Nov. 14, 197, and Article 17(1)1594 of the Labor Standards Act

Plaintiff 1 and three others

Defendant corporation

Daegu District Court (71 Gohap686) in the first instance

The original judgment (as to the claim against the plaintiff 3, the part against the defendant) shall be revoked.

The plaintiffs' claims are dismissed.

The costs of lawsuit are assessed against all plaintiffs through the first and second trials.

The defendant shall pay to the plaintiff 1 278,366, 159,640, 159,640, 159,640, 159,640, 159,640, 159,640, and 159,640, and 5% of the annual amount from September 5, 1971 to the full payment.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution are sought.

The same shall apply to the order.

As to the facts that the defendant company established the Korea-China Mining Center with a mining right to a middle-class mining area located in the Haakwon-dong, the defendant company had a mining right to the middle-class mining area located in the Haakwon-dong, there is no dispute between the parties concerned. The plaintiff et al. attorney of the plaintiff et al., the plaintiff et al. is a member of the achieved Mining Center Special Self-Governing Council established in the middle-class, and the plaintiff et al. was working in the above mining center in accordance with the so-called mining trade contract between the above autonomous council and the defendant company, but actually worked in the above mining center in accordance with the so-called mining trade contract between the above Haakwon-dong and the defendant company, the industrial accident insurance for the plaintiffs was borne by the defendant company and the employees of the defendant company who agreed to join the above mining union and fulfilled his duty to pay retirement allowances to the plaintiffs on the ground that the plaintiffs were not the workers of the defendant company, and thus, the relationship between the plaintiffs and the defendant company is established.

In general, in order to establish a labor relationship between the employer and the employee, there should be a contract which is concluded explicitly or implicitly (Article 17 of the Labor Standards Act), or there should be any other legal basis (Article 21 of the Labor Standards Act) for the purpose of paying wages to the employer. However, it is difficult to recognize that there is a labor-management relationship between the Plaintiffs and the employee company. There is no other evidence to acknowledge it, and rather there is no other evidence to acknowledge it, and it is possible to do so, according to each of the above evidence No. 1, No. 2, No. 1, and No. 2, No. 2 of the Labor Standards Act, the parties, including the Plaintiffs, who had been employed by the previous employee company including the Plaintiffs, constitute a non-permanent association which has been achieved by the employee company and the non-party, and the above self-government council (the chairperson of the Labor Standards Act) concluded a mining contract which was concluded between the defendant company and the employee company by extracting the mining area designated by the defendant company to renew the mining agreement to the above defendant company.

In addition, the facts that the defendant company agreed to purchase industrial accident insurance for the plaintiffs and pay their insurance premiums are acknowledged by the statement of No. 1, but it can be seen that the above autonomous council and the defendant company were to fulfill their responsibilities as an employer under Article 91 of the Labor Standards Act as a contractor in a contract between the above autonomous council and the defendant company. It cannot be readily concluded that the labor-management relationship between the plaintiffs and the defendant company was formed. Further, under the current law where the workers' freedom to join the labor union was guaranteed, the plaintiffs were arbitrarily admitted to the Korea Mining and Labor Government Branch, or that the plaintiffs were working in the same mine uniform, such as other mineral parts belonging to the defendant company, but the establishment of the labor-management relationship between the plaintiffs and the defendant company cannot be recognized.

Therefore, since the plaintiffs' claims for objection based on the establishment of labor-management relations between the plaintiffs and the defendant are clearly well-grounded in this respect, it would be dismissed without any room for further determination. As such, the original judgment (Provided, That the part against the defendant against the plaintiff Kim Byung-ok) is unfair in that it is unfair to conclude otherwise, and it is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act with respect to the bearing of litigation costs, respectively.

Judges Choi Hon-ro (Presiding Judge) Kim Jong-ju