2019du50168 Revocation of Disposition of Approval for Medical Care

A Stock Company

Law Firm Doz., Counsel for the plaintiff-appellant

Attorney Kim Nam-ju, Lee Jong-ju, Lee Jong-sung, Park Jong-Un, and Domina

Korea Labor Welfare Corporation

A person shall be appointed.

Seoul High Court Decision 2018Nu77977 Decided July 24, 2019

November 28, 2019

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff, including the part arising from the supplementary participation.

The grounds of appeal are examined.

1. Case history and key issue

A. The Plaintiff was entrusted by C (hereinafter referred to as “C”) with the new installation and transfer of D goods, follow-up maintenance and repair (hereinafter “D services”) (hereinafter referred to as “D services”), etc., and had the entrusted D services carried out by regional engineers (hereinafter “service engineers”).

B. On March 24, 2015, the Intervenor’s Intervenor (hereinafter referred to as the “ Intervenor”) started to perform the D service as an engineer of the Plaintiff’s service from March 24, 2015, as the Plaintiff’s service area was changed from the acceptance area to Echeon-si. As the Plaintiff changed the Intervenor’s service area from Egcheon-si to Egcheon-si, it performed D service duties in the Egcheon-si area.

C. On June 19, 2017, the Intervenor: (a) diagnosed the antenna location change on the apartment roof of D Service Customer; and (b) applied for medical care benefits to the Defendant on the ground that the Intervenor was not a worker under the Labor Standards Act on August 4, 2017; (c) upon the Intervenor’s request for review on the ground that the Intervenor did not constitute a worker under the Labor Standards Act; and (d) revoked the approval of medical care exemption on the ground that the Intervenor constituted a worker under the Labor Standards Act; and (e) on February 20, 2018, the Intervenor issued a disposition of approval of medical care exemption on the ground that the Intervenor constituted a worker under the Labor Standards Act.

D. Issues are whether the intervenor is entitled to receive insurance benefits under the Industrial Accident Compensation Insurance Act as an employee under the Labor Standards Act.

2. Criteria for determining workers under the Industrial Accident Compensation Insurance Act;

A. The Industrial Accident Compensation Insurance Act provides that an employee entitled to receive insurance benefits under this Act refers to an employee under the Labor Standards Act except for special cases concerning persons in special types of employment as stipulated under Article 125 (the main sentence of Article 5 subparag. 2). Therefore, the Industrial Accident Compensation Insurance Act is determined depending on whether an employee entitled to insurance benefits falls under, in principle, an employee under the Labor Standards Act (see Supreme Court Decision 199Da1638, Apr. 2

2. Supreme Court Decision 98Du2201 Decided October 25, 2018 and Supreme Court Decision 2015Du51460 Decided October 25, 2018, etc.

B. Determination as to whether a worker is a worker under the Labor Standards Act ought to be based on whether the form of a contract is an employment contract or a contract for work, the substance of which is, rather than whether the worker provided the worker with work for the purpose of wages in a subordinate relationship with the employer. Determination of whether a subordinate relationship exists should be made by comprehensively taking account of the following: (a) the employer’s contents of work; (b) whether the employer designates the hours and place of work; (c) whether the employer is bound by the employer; (d) whether the employer is capable of operating his/her business on his/her own account; (e) whether the employer owns the equipment, raw materials or tools of work; and (e) whether the employer is able to own the equipment, or cause the worker to act for a third party; (e) whether the nature of remuneration is the subject of work; (e) whether the wage is determined by the basic wage or fixed wage withheld at source; (e) whether the employer has continued to provide labor and its degree; and (e) whether it is recognized as an employee under the Act on social security system.

3. Appropriateness of the original judgment

A. According to the reasoning of the lower judgment and the evidence duly admitted, the following circumstances are revealed. (1) The Plaintiff, an employer, determined the details of the Intervenor’s business affairs and assessed, etc., and directed and supervised the Intervenor in the course of performing his/her duties.

(A) If the Plaintiff allocated D services to the Intervenor through the Plaintiff’s portable information terminal (Person Dalsistance, hereinafter “PDA”), the Intervenor performed his/her duties accordingly. The details registered in PDA include whether the Intervenor, a service engineer, is entitled to receive the sales proceeds and the withdrawal equipment. After performing his/her duties, the Intervenor reported the details of his/her duties to the Plaintiff via PDA, and the Plaintiff subsequently assessed whether the Intervenor’s performance of duties was smooth.

(B) The Plaintiff, like directly managed technicians, provided regular technical education, such as installation of equipment and follow-up maintenance work, to service engineers, including intervenors, and conducted relevant tests. (c) The Plaintiff created a name of the Plaintiff’s team leader and the Plaintiff’s phone number.

(2) Although the Intervenor does not commute to a certain place of business, it may be deemed that the time and place designated by the Plaintiff, the employer, was detained in view of the following circumstances. (A) The Intervenor’s business area was changed from the permissible place of business to E.S. according to the Plaintiff’s decision. (b) The Plaintiff allocated the Plaintiff’s business from 8:00 a.m. to PE. Accordingly, the Intervenor started work by visiting the first customer at 9:0 a.m., and accordingly, the Intervenor started work. As a matter of principle, the Intervenor’s services, including the Intervenor, should be handled on the day of assignment. As the Intervenor’s request was received to A/S request from the customer center by 6:0 p.m., at least 6:0 p.m., the time of work period was terminated. (c) The place where the Intervenor performed his duties as an article was the customer’s home

(3) The Plaintiff provided the Intervenor with high-priced equipment, such as the antenna, winter cable, and receiver essential for D services. The Intervenor could not employ a third party from the Plaintiff to act on behalf of the Intervenor, and he directly handled the work. Therefore, it is difficult to deem that the Intervenor operated the business on its own account independently from the Plaintiff.

The Plaintiff sold part for customer use, such as measuring instruments and cables, cables, and distributors, to the intervenors at a cost, and the Intervenor directly procured customer-to-door vehicles and bears the maintenance and repair costs on his/her own, while performing his/her duties.

However, such circumstance alone does not necessarily mean that the Intervenor engaged in business on its own account. (4) The Intervenor cannot be deemed to have borne the risks, such as profit creation or loss, by itself. (A) The Intervenor only performed the business assigned to the Plaintiff solely through the Plaintiff, and was unable to independently conduct the business on its own without going through the Plaintiff. The Intervenor was not entitled to receive the call-out equipment, etc. from the Plaintiff without the Plaintiff’s approval. (b) The Intervenor received from the Plaintiff any money in the name of the operating fee, apart from the installation fees and post-maintenance fees. However, if the Intervenor actively induceds the customer and received the business fees, the Intervenor transferred the business to the company and received the operating fees from the Plaintiff in return, and it is difficult to view that the Intervenor was able to independently create profits from the Plaintiff to the extent that the Intervenor was able to be evaluated as an independent business entity. Moreover, there is no data to deem that the Intervenor was able to independently bear the risks, such as losses, from the Plaintiff and the Intervenor.

(5) Remuneration, such as fees, paid by the Intervenor from the Plaintiff is merely remuneration for the labor provided by the Intervenor to the Plaintiff, and does not have any other characteristic. The Intervenor did not receive fixed wage by specifying the amount from the Plaintiff. However, regardless of the Intervenor’s efforts, the Intervenor received ex post facto maintenance and repair fees by calculating the amount on the basis of the number of subscribers regardless of the Intervenor’s performance. Considering this, it may be deemed that the Intervenor’s fee has the nature of fixed wage as a part of the amount of remuneration. (6) From March 2015 to June 19, 2017, the Intervenor performed the pertinent duties exclusively to the Plaintiff only from the time of the disaster.

(7) Examining the economic and social conditions surrounding the labor provided by the Intervenor to the Plaintiff, the Intervenor’s income activities are dependent only on the Plaintiff, and the duties performed by the Intervenor are essential to the Plaintiff’s business performance.

B. Examining these circumstances in light of the aforementioned legal principles, the Intervenor ought to be deemed to be entitled to receive insurance benefits under the Industrial Accident Compensation Insurance Act as an employee under the Labor Standards Act. The rules of employment and the provision on personnel service (personnel) set by the Plaintiff do not apply to the Intervenor, the Intervenor did not receive a specified fixed wage from the Plaintiff, the Intervenor did not withhold the tax on wage and salary income, and other social security-related statutes are not recognized as an employee by the Intervenor. However, all of them are cases where the Plaintiff, the employer, can arbitrarily determine by taking advantage of their economic superior status, and thus, the Intervenor’s nature of workers under

The judgment of the court below to the same purport is just, and the judgment of the court below did not err by misapprehending the legal principles on workers under the Labor Standards Act or by failing to exhaust all necessary

4. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Jo Hee-de

Justices Kim Jae-hyung

Justices Min You-sook