The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to whether a worker is a worker

A. Whether a worker is a worker under the Labor Standards Act ought to be determined in light of the form of contract, rather than whether it is an employment contract or a contract for work, depending on whether the worker provided work to the employer for the purpose of wages in the business or workplace.

Whether a dependent relationship as mentioned above exists shall be determined by comprehensively taking into account such economic and social conditions as the content of work determined by the employer, whether the employer is subject to the rules of employment or the rules of service, etc. of the employer, whether the employer designates working hours and working places and is bound by the employer, whether the employer is able to operate his/her business on his/her own account, whether the labor provider itself is able to own equipment, raw materials, working tools, etc. or to employ a third party and perform duties on his/her behalf, etc., whether he/she has any risks, such as creation of profits and losses by providing labor, etc., whether the nature of remuneration is the subject of work, whether the nature of the nature of the work itself, whether the basic salary or fixed wage has been determined, whether the employment relationship has been exclusive for the employer, and whether the status of the employee has been recognized under the Acts and subordinate statutes on the social security system, and thus, it is not readily concluded that the person who provides labor has a machinery, apparatus, etc., and that the person has no risk of creating profits and losses through providing labor on his/her own account.

Provided, That the circumstances such as whether the basic wage or fixed wage was determined, whether the labor income tax was withheld, and whether it was recognized as an employee in the social security system, shall be determined at will by the employer by taking advantage of the economic superior status.