(a) The meaning of an employee under Article 14 of the Labor Standards Act who can claim a retirement allowance under the same Act;

(b) The case holding that it constitutes a worker under Article 14 of the Labor Standards Act, who, although having taken the form of an academic service contract, may claim retirement allowances based on the actual labor relationship;

A. If, regardless of the form of an employment contract or contract under the Civil Act, an employee provided an employer with work in a subordinate relationship for the purpose of wages in substance, such employee constitutes an employee under Article 14 of the Labor Standards Act, and such an employee may seek a payment of retirement allowances under Article 28 of the same Act, which provides for the retirement allowance system.

(b) The case holding that it constitutes a worker under Article 14 of the Labor Standards Act, who, although having taken the form of an academic service contract, may claim retirement allowances based on the actual relationship of labor;

Articles 14 and 28 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4548, Jun. 9, 1987) (Law No. 1987, Jan. 1, 1988) (Law No. 1989, Dec. 26, 1991) (Gong1991,242)

Plaintiff 1 and two plaintiffs, et al., Counsel for the plaintiff-appellant and one other

Korea

Seoul High Court Decision 91Na10857 delivered on June 12, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, in this case where the plaintiffs sought the payment of retirement allowances on the ground that they are workers prescribed in the Labor Standards Act, the court below decided that the plaintiffs' work type, work status treatment and responsibility (as the head of the department to which the plaintiffs are assigned, the provision of their labor is not carried out independently according to their own will, but subordinate to the orders of the head of the department to which they are subordinate to the order of the head of the department) of the plaintiffs' remuneration received from the defendant (the fact that the provision of labor was not carried out independently according to their own will) (the fact that the performance of the assigned tasks was not simply paid according to the achievement of the assigned tasks, but it was planned to pay a monthly fixed amount as remuneration for the prescribed research activities according to the status of the research officer appointed with the prescribed qualification, and that the plaintiffs' remuneration amount corresponding to the performance of the labor services provided by the plaintiffs is not determined according to the quality or quantity of the assigned tasks, but the plaintiffs' claim is not based on the contract status status inspection or control of the plaintiffs' labor contract.

However, if, regardless of whether a contract is an employment contract under the Civil Act or a contract is in substance, if an employee provides an employer with work in a subordinate relationship for the purpose of wages, that employee shall be deemed to constitute an employee under Article 14 of the Labor Standards Act. Such an employee may seek a payment of retirement allowance under Article 28 of the Labor Standards Act, which provides for a retirement allowance system (see Supreme Court Decision 90Da20251 delivered on July 26, 191).

According to the actual labor relationship of the plaintiffs recognized by the court below based on their adopted evidence, it is clear that the plaintiffs provide labor to the defendant who is the employer for the purpose of wages, and therefore, the defendant is obligated to pay retirement allowances under the Labor Standards Act to the plaintiffs.

The judgment of the court below, based on the form of an academic service contract, did not regard the plaintiffs as an employee under the Labor Standards Act, is erroneous in the misapprehension of legal principles as to workers, which affected the conclusion of the judgment. Therefore, it is justified

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)