Whether the Labor Standards Act is in violation of the payment of retirement allowances to a worker who only provides labor by borrowing the form of a contract agreement (affirmative)

Even if an employee provided labor in the form of a contract for work, if the form of employment is maintained in a subordinate relationship with the employer and only provides a specific labor at the workplace of the contractor, it constitutes a worker under Article 14 of the Labor Standards Act. Since such an employee pays retirement allowances as prescribed in Article 28 of the same Act, if he/she fails to pay retirement allowances to the employee, it constitutes a violation of the Labor Standards Act.

Articles 14, 28, and 110 subparag. 1 of the Labor Standards Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Defendant

Defendant

Gwangju District Court Decision 91No292 delivered on June 7, 1991

The defendant's appeal is dismissed.

We examine the grounds of appeal.

Even if a certain worker provided labor in the form of a contract for work, if the form of employment is maintained in the subordinate relationship between the employer and the subcontractor, and only provides a specific labor at the workplace of the contractor, it shall be deemed as a worker under Article 14 of the Labor Standards Act. Such an employer shall pay retirement allowances as prescribed by Article 28 of the Labor Standards Act.

In this case, it is clear that the court of first instance concluded a contract for work at the business place operated by the defendant based on the present evidence and determined that the form of work of the non-indicted Kim Sung who provided labor is subordinate to the above use. In light of the records, the above judgment is justifiable. If so, according to the above legal principles, the above Kim Sung is deemed to be an employee under Article 14 of the Labor Standards Act, and the court below determined that the defendant was guilty who did not pay retirement allowances to him

We cannot accept the conclusion that the Labor Standards Act is not applicable to the case of providing labor under a contract agreement, or that it attacks the judgment of the court below on the basis of the facts not recognized by the court below

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)