2012Da74168 Retirement Allowance

1. A;

2. B

Property Management Corporation

Gwangju High Court ( Jeonju) Decision 2011Na2680 Decided July 26, 2012

August 13, 2015

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether a worker is a worker under the Labor Standards Act ought to be determined depending on whether the form of a contract is an employment contract or a contract for work, and whether an employee has provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Whether a dependent relationship is determined by the employer’s contents of work, and whether the employer has considerable command and supervision in the course of performing work, such as employment rules or personnel regulations, etc., and whether the employer designates working hours and working places and is bound by the employer, whether the employer is capable of operating his/her business on his/her own account, such as holding the equipment, raw materials, working tools, etc., or having a third party employ a third party, and whether the risks such as the creation of profits and losses through the provision of labor, and whether the nature of remuneration, such as withholding of the basic pay or fixed wage, are the nature of work, whether the wage has been determined in the labor relationship, whether the employer has continued to provide labor, and the degree thereof, and whether the status of the employee has been recognized under the Act on Social Security System, etc.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed. (1) The Plaintiffs concluded a debt collection contract with the Defendant each time when the six-month contract period expires after entering into the said contract, and the Plaintiff A performed the debt collection business from October 1, 2002 to December 21, 2009, and the Plaintiff B, from November 1, 2003 to December 10, 2009 to December 23, 2009. (2) The debt collection sources, including the Plaintiffs, who entered into the said contract with the Defendant, have been performing the business of collecting claims in the following manner:

① The claims collection center, upon attending the office provided by the Defendant, entered the details of the collection business into the Defendant’s computer system (Ams) or carried out the claims collection business through telephone calls, mail calls, text messages, etc., after having worked in the office provided by the Defendant.

② The claims collector received a certain rate of fees according to the records of claims collection without basic pay or fixed pay, used the Defendant’s position in performing claims collection business externally, and used the Defendant’s name in the highest place of claims collection, etc.

③ Although the Defendant did not separately set working hours and places of the claims collection center, if necessary, the Defendant allowed the claims collection center to separately designate working hours and places. The claims collection center imposed a duty to report, attend education, and maintain confidentiality, and prevented a third party from engaging in the collection business. Furthermore, in addition to the breach of a contract, the Defendant’s non-compliance with the provision, performance records, lack of business performance, lack of business performance, lack of business performance, and business needs of the Defendant.

④ The Defendant, a corporation established for the purpose of debt collection, etc., set up a department that manages education, performance, evaluation, etc. of debt collection sources in its business sector, and, if its performance is low, set up products. The Defendant managed the performance of debt collection sources by warning measures, etc., and could grasp the log records, monthly performance, work performance, etc. of debt collection sources through the computer system. The Defendant supervised or urged the management staff to monitor the commuting status, work performance, etc. of debt collection sources.

(3) On February 1, 2008, when the Supreme Court rendered a judgment that the debt collection source who entered into a debt collection contract with the defendant constitutes a worker under the Labor Standards Act, the defendant held a meeting of the branch office on February 12, 2008 in order to prepare countermeasures against the decision, the defendant held a meeting of the branch office on February 12, 2008. The meeting records contain the following: "the meeting records do not restrict the opening time of the office of the collection source, does not operate the business trip-related records, and does not receive a report on the collection plan and performance records of the collection source." In addition, on June 13, 2008, the defendant may separately determine the head office, each branch office, and center on June 13, 2008.

(4) From February 12, 2008, the Defendant did not prepare an official attendance book, a business trip record, etc. for the collection source, and prepared and submitted a weekly recovery plan for the group, individual recovery expected amount, and the expected achievement rate, etc., and abolished the preparation and submission of a weekly recovery plan for the collection source, other than illegal collection and civil petition prevention education, without conducting education for the collection source as well as for the performance of their duties.

The compulsory visit system for the investigation was abolished.

(5) Meanwhile, the Defendant changed the form of the contract entered into with the claims collection agency on seven occasions from March 17, 2008 to November 1, 2008. Among them, the provisions of the contract form changed from June 16, 2008: (a) re-contract provisions; (b) regulations on the frequency of performance; (c) regulations on the management of performance of the claims collection agency; (d) regulations on the management of performance of the claims collection agency; and (e) regulations on the third party’s performance to terminate the contract in a case where it is deemed that the performance of claims is considerably poor or that it is difficult to maintain the contract due to other business needs; or (f) regulations on the termination of the contract in a case where the performance of claims collection agency entered into the contract form changed from June 16, 2008 to the claims collection agency; and (f) the Defendant maintained the system of managing the claims collection team for each type after concluding the contract form changed to the contract form; and (f) has been able to manage the monthly performance or management through the electronic computer system.

3. The following circumstances acknowledged by the record along with these factual relations, i.e., (i) the Defendant appears not to have any significant meaning in the form of the contract itself, such as: (ii) the Defendant was established mainly for the purchase and sale of non-performing assets, such as agricultural cooperatives, etc., and for the preservation and collection of non-performing assets acquired from the agricultural cooperatives, etc., and (iii) the Defendant was able to engage in the business of collecting claims as a key and important business in the Defendant’s business; and (iv) the Defendant was able to enter into a modified contract with the Plaintiff on June 13, 201, and explain to the extent that it did not have any direction and supervision over the Plaintiff’s business to ensure proper business performance; and (iv) the Defendant appears to have continued to manage the Plaintiff’s business performance and commuting performance after concluding the contract with the Team, electronic computer system, and commercial system after concluding the contract with the Plaintiff on June 16, 208.

In light of the fact that there is a lack of materials to be seen, ⑤ even if the contract entered into on June 16, 2008 with the change of the company from June 16, 2008, the provision prohibiting the third party from acting as a third party was deleted, it would not be practically possible to allow the debt collection center controlled by the team leader to act as a third party for the debt collection business on behalf of the third party. ② It is difficult to conclude that the document, including the plaintiffs, was merely an internal document of the defendant, because it is difficult to conclude that the debt collection center, including the plaintiffs, entered into a contract with the changed contract form on June 16, 2008, because the company did not limit working hours and the location of the debt collection business.

4. Nevertheless, the lower court, solely based on its stated reasoning, determined that the Plaintiffs constitute workers under the Labor Standards Act until concluding claims collection contracts in accordance with the form of contract changed to June 16, 2008, and that the Plaintiffs do not constitute employees under the Labor Standards Act from the date of signing contracts changed to the person on June 16, 2008 to the date of termination of claims collection business. In so doing, the lower court erred by misapprehending the legal doctrine on workers under the Labor Standards Act, thereby adversely affecting the conclusion

5. Therefore, without examining the remaining grounds of appeal by the plaintiffs, the part against the plaintiffs among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Kim Jae-tae

Justices Jo Hee-de

Justices Park Sang-ok