2014 oldest 5949 Revocation of a disposition not to grant first medical care

○ ○

Masan-si Madro6 way

Attorney Park Jae-sik, Counsel for the plaintiff-appellant

Korea Labor Welfare Corporation

Litigation Performers' Mentalhee

April 30, 2015

May 14, 2015

1. The Defendant’s disposition of non-approval of medical care rendered to the Plaintiff on September 11, 2013 is revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. The Plaintiff was diagnosed on June 19, 2013: 00 Yando Construction Co., Ltd. (hereinafter referred to as "Tando Construction"). At the site of the Dog Gan apartment roof Repair Project (hereinafter referred to as "the instant construction project"), the Plaintiff was diagnosed on the first, second, and second Tanche frame (hereinafter referred to as "the instant accident") by suffering from an accident going behind during the Dog Gan apartment roof Repair Project (hereinafter referred to as "the instant accident").

B. On July 23, 2013, the Plaintiff filed the first application for medical care benefits to the Defendant on the ground of the instant injury and disease, but on September 11, 2013, the Defendant rendered a disposition to not approve the Plaintiff’s application on the ground that the Plaintiff was not an employee under the Labor Standards Act where the sewage supplier who received a subcontract for the instant construction from the Dora Construction was the subcontractor (hereinafter “instant disposition”).

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2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was employed as a daily worker in relation to the instant construction from tindo Construction and was engaged in the construction. Although the Plaintiff was engaged in the instant construction work after collecting people, the Plaintiff received a certain amount of money from the Plaintiff and the Plaintiff’s employees, and the Plaintiff, for the convenience of tindo Construction, concluded that tindo Construction would be responsible for the cost of materials purchased by the Plaintiff for the convenience of tindo Construction. As such, the Plaintiff participated in the instant construction work as an employee under the Labor Standards Act.

Therefore, the disposition of this case by the Plaintiff on the premise that the Plaintiff is the subcontractor of tindo Construction as to the instant construction is unlawful.

(b) Facts of recognition;

(1) On July 1, 2006, the Plaintiff is a person registered as a business operator of "three-dimensional special mountain business" in the name of the Plaintiff, and that of "three-dimensional special mountain business" in the name of the Plaintiff.

(2) From May 2013 to June 25 of the same year, the construction of tindo was awarded a contract for the instant construction from the council of occupants' representatives at Ho-dong, Ho-dong, Ho-dong, Hoyang-dong, Hoyang-dong, Hoyang-dong, Ho-dong, 711 to the total construction cost of the instant construction (including additional taxes), and the instant construction was carried out from May 28, 2013 to June 25 of the same year (the actual construction period is from June 3, 2013 to June 25 of the same year).

(3) Before commencing the instant construction, tindo Construction is incorporated with the Plaintiff with the following terms verbally, and according to the said agreement, the Plaintiff performed work at the instant construction site, together with approximately 5 to 6 daily workers, including amb○, Ma○, Ma○, etc. from June 3, 2013 to June 3, 2013.

A person shall be appointed.

(4) While completing the instant construction, the total inputs of 5 to 6 workers, including the Plaintiff, were 60 articles (one article constitutes the daily labor volume per employee).

(5) Although the Plaintiff was unable to work at the construction site after the instant accident, tindo construction was prepared with only the Plaintiff’s resident registration number (excluding foreign workers), regular ○○, and Park ○○○, and the said 3 employees, irrespective of the actual workers’ work status, worked for 60 items each of 60 items on June 3, 2013 or June 29 of the same year, irrespective of the actual workers’ status.

(6) Under the financial situation of tindo Construction, a small small-scale construction company, tindo Construction failed to pay the above workers’ wages to the Plaintiff every day. From June 24, 2013, the amount corresponding to the above 60 items was calculated by calculating the personnel expenses of KRW 9 million and material expenses, transportation expenses, food expenses, etc., and paying KRW 11,80,000 to the Plaintiff three times in total.

(7) The Plaintiff paid the amount of money received from tindo construction to the said workers in accordance with the actual service period of workers who worked at the construction site of this case, as personnel expenses, and settled all of the actual input material expenses, transportation expenses, food expenses, etc.

(8) Workers, including ○○, who were on the part of the Plaintiff were not in an employment relationship with the Plaintiff or under the direction and supervision of the Plaintiff, and the Plaintiff was in charge of the actual work of the same kind as other workers, not in the role of the supervisor of the workers at the construction site of this case.

(9) At the site of the instant construction work, this case’s construction work was directed and supervised by checking the number of persons who participated in the instant construction work daily, and ordering the Plaintiff to perform the overall work.

【Uncontentious facts, Gap evidence 2 through 5, Eul evidence 3, 5, and 7 (including each number), the witness’s testimony and the whole purport of the pleading

B. Determination

(1) For the purpose of the Industrial Accident Compensation Insurance Act, the term “occupational accident” refers to an accident caused by the worker’s performance of work or his ordinary personal activity under the control and management of the employer based on the worker’s labor union with the employer. Thus, for the subject of protection under the Industrial Accident Compensation Insurance Act, it should constitute an employee under the Labor Standards Act.

Meanwhile, whether an employee under the Industrial Accident Compensation Insurance Act constitutes a worker under the Labor Standards Act, which is the subject of protection, should be determined depending on whether the form of a contract is an employment contract or a contract for work, and whether the employee provided his/her labor in a subordinate relationship with the employer for the purpose of wages. Whether the aforementioned subordinate relationship exists should be determined by the employer’s contents of the business, and be subject to the rules of employment or the regulations on personnel management, etc., the employer’s considerable direction and supervision in the course of performing the business, whether the employer designates working hours and place and is detained by the employer, whether the employee is allowed to operate his/her business independently, such as holding the equipment, raw materials or tools, etc., or having a third party employ and act on behalf of the employer, whether the employer has become aware of the risks, such as the creation of profits and losses, and whether the nature of remuneration was determined by the nature of his/her own labor, whether the employee has a basic or fixed wage or wage, and whether the employee provided his/her labor has an economic relationship or status, such as the provision of his/her labor, should not immediately be determined.

(2) In full view of the following circumstances, the evidence mentioned above, and the facts of recognition, it is reasonable to view that the Plaintiff, on its own account, was employed as a daily worker for tindo Construction and was subject to the instant accident under the Labor Standards Act as an employee under the status of the employee under the Labor Standards Act, instead of as a business operator operating his own business on his own account. The statement in the evidence Nos. 2, 3, 5, and 8 alone is insufficient to establish the said recognition (in particular, this Court testified that: (i) the evidence No. 8 in this Court testifieds that there was a possibility that tin construction would be damaged, and that there was a false statement from the fact).

① During the instant construction period, the content of the instant construction was designated by tindo Construction, and the Plaintiff did not have agreed on the total amount of official works to be paid from tindo Construction due to the instant construction. Rather, the Plaintiff’s employees, including the Plaintiff, were paid the amount of wages equal to 150,000 won per day. In fact, tindo Construction was finally paid to the Plaintiff, upon ascertaining the current status of the employee’s input after the completion of the construction, after ascertaining the current status of the employee’s input, including the Plaintiff.

② Although there was no written employment contract between the Plaintiff and Tando Construction, it is customary between the workers who work for a short period of time and work for a day-time worker.

③ The Plaintiff purchased materials on his own and transported them using the Plaintiff’s vehicle, but this is limited to the Plaintiff’s use of the vehicle for the convenience of tindo construction, and the expenses required for it were all borne by tindo construction, not by the Plaintiff.

④ The Plaintiff recruited foreign workers, including foreign workers, and conducted work at the instant construction site; however, the Plaintiff, who had no expertise in the roof Busan Metropolitan City, recruited the workers to work together with the Plaintiff, who had worked in this field on behalf of the construction of tindo, and the Plaintiff also received wages as the representative at another construction site and divided them into several parts.

⑤ During the instant construction period, there was no fact that the Plaintiff directed and supervised the said workers, and, in the event that the instant construction is delayed or unnecessary, a large number of human resources are invested, tindo construction is responsible for its non-use and damage. As tindo construction is responsible for the instant construction work, tindo construction, a tindo construction employee, prepared a work log, etc., and directed and supervised the Plaintiff and daily workers at the instant construction site.

④ Although the Plaintiff separately registered his/her business, the details of transactions related to the Plaintiff’s workplace were not verified, such as the issuance of a zero number of documentary evidence in the name of the Plaintiff’s workplace, and the Plaintiff received wages on behalf of the Plaintiff for his/her employee, including foreigners, bad credit holders, etc., and settled accounts with the Plaintiff on behalf of his/her employee, and the Plaintiff also received the same amount of wages as his/her employee’s work.

C. Sub-committee

Therefore, on different premises, the Defendant’s disposition of this case, which rejected the Plaintiff’s application on the ground that the Plaintiff was not an employee at the time of the instant accident, was unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

Judge So-young