2014Na49250 Retirement Allowance, etc.

1. Stambed ○;

Daegu

2. Brontal disease (name before life: Maternal disease);

Daegu

3. Forwarding.

Daegu

4. 설◆◆

Daegu

5. Electric wave;

Daegu

6. 길■■

Daegu

7. Fixed △△△;

Gyeongsan-si

8. 이▲▲

Daegu

9. These days:

Boan City

10.윤▼▼

Boan City

11.한→→→→

Suwon-si

12. 신←←

Ulsan (Ulsan)

13. 이 ↑ ~ ↑

Busan

14. 이 ↓ ↓

Dae-gu

15.This paragraph.

Kim Jong-si

16. = Interest =

Ulsan (Ulsan)

17. 박 《 《

Daegu

[Defendant-Appellant] Plaintiff 1 and 1 other

Attorney OOO, OO, OO

/Sgd./ /Sgd./

Seoul

○○○○

Law Firm LLC (LLC) 00

Attorney OOO, OO, OO,O,OO

Law Firm LLC (LLC) 00

Attorney OOO, OO, OO, 00

Seoul Central District Court Decision 2013Gahap30160 Decided September 18, 2014

July 17, 2015

September 23, 2015

1. The part against the defendant among the judgment of the court of first instance is revoked, and all of the plaintiffs' claims corresponding to the revoked part are dismissed.

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

1. Purport of claim

The defendant shall make to the plaintiffs each entry in the column for "total amount of claims" in the attached Table and the same table as to each of them.

The damages for delay shall be calculated at the rate of 20% per annum from each corresponding day to the day of full payment.

L. D. Payment of money.

2. Purport of appeal

The plaintiffs are as follows: (The payment and extension of retirement pay to the defendant at the first instance court; (3) holidays; and (4) annual leave;

The court of the first instance has sought the payment of labor allowances, and the first instance court has partly accepted the claim for payment of retirement allowances.

The defendant has dismissed the claim for payment of overtime, holidays, or annual leave allowances, and only the defendant has appealed.

As such, the first instance court's claim for retirement allowance and its delay damages in this court's judgment is partly made.

the cited portion) ..

1. Basic facts

A. The Defendant, who is engaged in manufacture, import, sales, etc., such as KONA, Scarf (s) and bags, concluded a purchase contract under a special contract for sales in each department store, with companies operating department stores such as GONA and new world department stores, and each department department company, which shall purchase goods manufactured or imported on credit by the Defendant and pay the remaining amount after deducting the commission from the sales revenue from the sales revenue, to the Defendant, while entering into a contract for purchase in a special contract for the department store.

B. The Plaintiffs prepared a sales service agreement with the Defendant around the corresponding day of the date specified in the attached Table’s business start date. From the corresponding day to each of the above, the Plaintiffs performed their duties as a sales salesperson who sells the goods manufactured or imported by the Defendant within each department store, and completed the sales business on each of the corresponding days listed in the attached Table’s “the end date of the business start.”

[Grounds for Recognition] Unsatisfy, Gap evidence 1, 27 (including each number; hereinafter the same shall apply), Eul evidence 4, the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion (1)

The plaintiffs were workers who provided labor under the direction and supervision of the defendant, and they did not receive each retirement allowance as stated in the column of "amount of retirement allowance claim" even after they retired from the defendant. The defendant is obligated to pay the retirement allowance to the plaintiffs.

(2) The Defendant Plaintiff entered into a sales service contract with the Defendant and received fees accordingly, and the Defendant cannot be viewed as the Defendant’s employee. Thus, the Defendant did not have the obligation to pay retirement allowances to the Plaintiffs.

B. Determination

(1) Whether the plaintiffs are workers under the Labor Standards Act (A) legal principles

Determination as to whether a worker is a worker under the Labor Standards Act shall be made based on whether the form of a contract is an employment contract or a contract for employment, and whether a worker has a subordinate relationship with an employer for the purpose of wages. Determination as to whether an employer has a considerable command and supervision in the process of performing duties, such as setting the content of duties, applying the rules of employment or the regulations on personnel affairs, etc., and whether the employer is bound by the employer, whether the employer is able to operate his/her business on his/her own account, whether the employer is able to own equipment, raw materials, work tools, etc., or to have a third party work on his/her own, and whether the risks such as the creation of profit and the occurrence of losses through the provision of labor, whether the nature of remuneration is the subject of employment, whether the basic wage or the amount of wage and salary income tax has been determined, whether the relationship with the provision of labor was continuous, and whether the employer has exclusive affiliation to the employer, and whether the social security system is recognized as an employee, etc., and whether the employer has a superior economic position.

(3) Facts of recognition

In full view of the aforementioned evidence, Gap's evidence and evidence Nos. 2 through 26, 30 through 34, 43, 44, Eul's evidence Nos. 1 through 3, 5, 6, 10 through 14, 16, 16, 27, 31, 38, 39, 41, 43 through 46, 49, 51, 53, 59 through 64, part of Gap's evidence Nos. 37, 42, witness from the trial to the witness from the trial, testimony from the trial, and testimony from the trial witness X, the following facts are acknowledged. (1) Upon the introduction of the sales service contract by terminating the existing employment contract with the salesperson and entering into a sales service contract, the above sales service contract was introduced at around 000 Do 400.

B) On August 2005, the Defendant concluded a sales service contract with the salesperson since September 1, 2005, when it was held at the lower-class position with each sales force of each sales force on August 31, 2005 and received a written resignation in a lump sum from the sales force on September 1, 2005 (hereinafter referred to as the “instant contract”).

1. The contract term: (1) from the (1) month of the year to the (2) month (2) month of the contract (1) month; (2) monthly (1) : (4) sales brand (2) sales service commission: (5) monthly sales commission: after subtracting the short-term employee's pay from the monthly sales commission, and then subtracting the difference from the reserve. (6) Payment date: (5) On the 15th day following the end of two months after the 15th day after the end of each month: 5% of the annual salary as sales deposit and refund at the time of termination of the contract. (8) Sales commission may be changed if adjustment of the sales commission is necessary due to changes in status or other reasons; (2) sales commission is concluded with each of the instant salespersons, such as entering into a contract with each of the instant salespersons, and (3) sales commission or sales commission, and (4) after entering into any sales commission or sales commission with each of the instant salespersons's age or age;

B) The sales clerks worked at the workplace stipulated in the instant contract and carried out business activities using the office fixtures, fixtures, etc. owned by the Defendant. However, in the event that the number of losses of each store is insufficient due to the use of leave due to pregnancy, childbirth, etc., the implementation of the department store sales promotion events, etc., the sales clerks directly employed short-term or part-time sales clerks at each store.

C) From September 2005 to February 2, 2007, the Defendant paid the said personnel expenses directly to the short-term salesperson or part-time salesperson in each store. From February 2007 to October 2009, the Defendant paid the said personnel expenses to the salesperson, including the commission. However, as the following problems arise, such as not paying the personnel expenses to the short-term salesperson, etc., the Defendant returned from November 2009 to the manner that the direct salesperson paid the short-term salesperson’s personnel expenses.

D) Before the introduction of the sales service system, the sales clerks prepared a long-term employee status list, short-term employee status list, and long-term employee leave plan stating the status, etc. of the sales clerks who work for each store regularly, and submitted them to the Defendant, and the Defendant confirmed them and notified the Defendant of the status of the sales clerks by obtaining approval. Even after the introduction of the sales service system, there was an entry in which the Defendant prepared a work status list, etc. according to the above form and notified the Defendant, but the said work status list did not contain the Defendant’s approval system. In addition, although the Defendant demanded to register the hours of their attendance from November 2012 to March 2013, 201, the above guidelines were temporarily implemented and suspended.

E) According to the instant contract, the sales clerks paid a certain amount of reserve to the Defendant for the purpose of securing compensation for damage caused by the destruction, damage, theft, etc. of the goods. In the event that the damage was incurred therefrom, the Defendant appropriated the amount from the above reserve to the sales clerks, and returned the remaining amount to the sales clerks.

F) Sales clerks have received education on the introduction of new products and basic information on products twice a year from the Defendant.

G) Sales clerks have received certain money from the Defendant on a holiday and on the Workers’ Day, such as tin and New Year’s Day.

3) The fee paid to the salesperson is calculated based on the amount calculated by multiplying the sales amount of each store by '(the store fee rate)' and 'personal fee rate'. At the time of the introduction of the sales service system, the Defendant calculated 24.45% from the existing annual salary of the salesperson ( = 8% + 16.45% equivalent to the cost of the four major insurance, etc.) and entered into the instant contract with the salesperson, and the sales amount of the goods such as the handbag and the KON that the Defendant manufactured, imported, and sold monthly. The Defendant introduced the upper limit of the fee (130% of the existing annual salary, 120% after 206) and the lower limit (85% of the previous annual salary) and (85%) of the annual salary to the salesperson.

B) Meanwhile, due to the unstable computerized system following the introduction of a new sales service system, the Defendant: (a) around 2006, divided the number of even number months and the number of months; and (b) paid a total sum of commission fees on the basis of two months; (c) once a certain amount of commission was paid on the several months for each odd month (based on the benefits that had been received before the introduction of the sales service system, the amount raised by 8% on the basis of the benefits that had been received before the introduction of the sales service system), and thereafter, the commission was additionally paid after adding up the sales amount after calculating the sum of the commission for the delivery and the sales in the even number month.

C) In addition, due to the decline in the sales revenue of the Defendant due to the occurrence of the financial crisis around September 2008, the Defendant introduced a fixed fee system until the second half of 2011, and returned to the existing fee system. 4) The payment of the business income tax was made.

Before the introduction of the sales service system, the Defendant withheld labor income tax from the salesperson, but after the introduction of the above system, the salesperson paid business income tax directly to the salesperson. (c) According to the above findings of recognition, where the salespersons including the Plaintiffs employ short-term salespersons, only the main body of payment is different, and the costs are ultimately paid from the sales amount of each store, and thus the Defendant bears the Defendant’s burden, and some salespersons prepare and notify the Defendant of the work status, etc. of each salesperson’s work status, and the Defendant demanded the Defendant to report the current status of the worker’s work attendance from November 2012 to March 2013 through the internal computer network. The fact that the Defendant notified the fact that the salesperson received certain money from the Defendant on the name of the salesperson, such as stone and snow, and on the date of his employee, and the fact that the salespersons received the fees calculated in accordance with the upper and lower limit of the fee rate, sales rate, sales volume, sales volume, sales volume, and personal fee rate, and the Defendant’s goods and fixtures are recognized.

2 ) 그러나 위 인정 사실과 앞서 든 증거, 갑 제28, 29호증, 을 제7, 8, 9, 28, 29 , 30, 32, 34 내지 37, 42, 50, 54, 56호증의 각 기재, 을 제15, 58호증의 각 일부 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정에 비추어 보면, 앞서 인정한 사실과 갑 제39, 40, 41호증의 각 기재, 갑 제37호증의 일부 기재, 당심 증인 xx ∝의 일부 증언만으로는 원고들이 실질적으로 사업 또는 사업장에서 임금을 목적으로 종속적인 관계에서 피고에게 근로를 제공하였다고 보기 어렵고 달리 이를 인정할 증거가 없다 .

① The instant contract only provides for the place of work, term of contract, fee rate to be paid by the salesperson, etc., and does not stipulate the method of performing duties, details of the obligation to be borne, grounds for termination of the contract, etc., and does not provide for the salesperson, including the Plaintiffs, to whom the rules of employment applied to regular employees of the Defendant. Moreover, the Plaintiffs did not receive a personnel order regarding promotion, relocation of burial, etc. from the Defendant.

② Sales clerks including the Plaintiffs appear to have entered into the instant contract with the Defendant to have sufficiently explained the changes in the contents of their duties following the introduction of the sales service system, the introduction of the commission system, and the effect of the changes. According to the introduction of the instant contract, the sales clerks were fully aware of the difference between the previous employment contract and the instant contract and the instant contract, and thus, considered the advantages of income increase due to autonomous performance of their duties. They appear to have entered into the instant contract after voluntarily submitting a resignation. These intent should be respected. (iii) The places of sales clerks including the Plaintiffs are not voluntarily designated by the Defendant, but are determined by the agreement between the sales clerks and the Defendant, taking into account the convenience in the attendance of the sales clerks, and the sales of the relevant stores. In the event the sales stores are determined under the instant contract, the relocation of the sales clerks to other sales stores was not well designated, and it appears that the delegation of the Plaintiffs’ duties to the department stores is sufficiently possible. As such, the Plaintiffs’ place of business to the department stores is not contrary to the nature of the sales store.

④ The sales clerks are classified as '(or (i) or (ii) or 'members (or (iii)', but they are not classified by the Defendant, but merely named as those voluntarily assigned by the sales clerks according to the employment career, etc. Before entering into the instant contract, the sales clerks have been paid incentives, etc. from the Defendant upon setting the sales targets for each sales store and evaluating the achievement rate of the target. However, after entering into the instant contract, the sales clerks have not been awarded sales targets or recommended for the increase of sales, and only received fees for each sales store's return.

⑤ Prior to the conclusion of the instant contract, the sales clerks prepared a work status list for each store and reported it to the Defendant on a regular basis, and the Defendant managed the status of the sales clerks’ work positions through the approval therefor, but it appears that the sales clerks did not manage the status of the sales clerks’ work positions after the conclusion of the instant contract. However, even after the conclusion of the instant contract, the sales clerks partially notified the Defendant of the status of their work positions through the work status list that they were used before, but the above work status list does not include the Defendant’s approval system, and the sales clerks received only the fees according to each sales commission rate and individual fee rate regardless of the current status of the sales clerks, and even if the current status of the sales clerks’ work positions is defective, the Defendant did not have any means to reduce their commission rates and transfer them to other sales stores, and did not have any actual disadvantage. In light of the above, it appears that the sales clerks voluntarily notified the Defendant of the current status of their work status for the smooth operation of each sales store through communication with each sales store and the Defendant.

(6) In addition, the Defendant demanded the salespersons to enter the hours of attendance and the current status of service through the internal server from November 2012 to March 2013, 2013, or notified the salespersons of such fact. The salespersons set up a department store business hours (from 10: 30 to 20:0) and sent out or retired during a certain period. However, the Defendant’s demand for a report on the current status of attendance through the internal server was relatively short period of time (this is compared to that of the Defendant’s demand for a report on the current status of attendance through the internal server. This is against the Defendant’s demand for a report on the current status of attendance through his fingerprint registration for regular employees). The Defendant did not take the above measures for the remaining period except for the above period, and the factual restriction on the hours of attendance and leaving service appears to be inevitable restrictions due to the restriction on the business hours of department stores, etc., which are working places, and there was no disadvantage imposed upon the Defendant due to absence from work or dismissal.

7) Under the instant contract, the Defendant has received a certain amount of money from the salespersons as a sales deposit to cover their liability for damages caused by the destruction, damage, or theft of goods from the salespersons. The risks of goods except for sale have been basically imposed upon the salespersons. In addition, the Plaintiffs received education twice a year from the Defendant to hear the description of goods at the time of the issuance of new goods, etc., but the aforementioned education was merely received merely from the Defendant at the time of the withdrawal of new goods in order to increase the sales profit. The aforementioned education received by the salespersons is distinguishable from the content and frequency of education, etc. of education, not only from the job training received by regular employees but also from the Defendant (the Defendant’s regular employees are subject to education, such as job training, manager, regular health education, and prevention of sexual harassment on several occasions from the Defendant). The Plaintiffs are mostly composed of women, so it appears that the use of leave due to pregnancy, childbirth, etc. was frequent, such as short-term employment.

It appears that a person’s agency is free to use leave without any restriction on obtaining leave approval from the Defendant. Moreover, in the course of performing the sales business, the sales clerks are performing their business freely on their own on the basis of their experience without being instructed by the Defendant, and the contract of this case is terminated and the contract of sales services is concluded with other companies. (Even if the Defendant’s head office regularly visits the department store, this appears to have been made at the minimum level of implementation inspection conducted by the Defendant as the support for sales display or the truster’s status, and thus, the Plaintiffs do not have been subject to considerable direction and supervision by the Defendant during the course of performing their duties;

⑧ 판매원들에게는 기본적으로 매출액에 따른 수수료만이 지급되어 점 ( 매장 ) 수수료율, 개인 수수료율에 따라 판매원들 사이에 실제로 지급되는 수수료에는 상당한 차이가 있다. 비록 피고가 한때 고정수수료 제도를 도입한 바 있고 수수료율의 상 · 하한 제도를 통해 판매원들이 일정한 범위 내의 수수료를 받기는 하지만, 이는 이 사건 계약 제8조에 근거한 것으로서 금융위기 발생 등으로 피고의 매출이 감소하여 판매원들의 수입이 감소되거나 피고가 제조 · 수입하여 판매하는 상품의 판매율이 월별로 편차가 있음을 고려하여 판매원들이 경제적 어려움을 겪는 것을 방지하기 위하여 도입된 것으로 보일 뿐 이로 인하여 판매원들이 피고로부터 고정적인 급여를 받았다거나 수수료 제도의 본질이 변경되었다고 보기는 어렵다 [ 원고들은 특히 00 00점 000 매장에서 판매원으로 일한 ²²의 경우를 들어, 판매원들이 피고로부터 고정적인 급여를 받았다고 주장하므로 이에 관해 본다. 갑 제25호증, 을 제37호증의 각 기재에 변론 전체의 취지를 종합하면, ²는 2006. 4. 1. 피고와 근무장소는 00 00점 000 매장 , 계약 기간은 2006. 4. 1. 부터 2006. 8. 31. 까지 정하여 이 사건 계약을 체결하였는데 , 위 기간에 피고로부터 월 2, 000, 000원의 고정수수료를 받은 사실, 2006. 9. 경 이 사건 계약을 갱신한 후에는 2006. 9. 경부터 2008. 8. 경까지는 위 매장의 매출액에 점 ( 매장 ) 수수료율과 개인 수수료율을 곱한 금액에 따라 수수료를 받아 오다가 2008. 9. 경부터 2009. 12. 경까지는 월 2, 581, 250원, 2010. 6. 경부터 ( 2010. 1. 경부터 2010. 5. 경까지 수수료 지급자료는 제출되지 않았다 ) 2010. 11. 경까지는 월 2, 916, 600원의 고정수수료를 받은 사실은 인정되나, 앞서 든 증거에 변론 전체의 취지를 종합하면, 피고는 1년 단위를 기준으로 이 사건 계약을 체결하는데, = > 는 5개월의 단기간 피고와 이 사건 계약을 체결하였고, 위 00 00점 000 매장은 피고가 신규로 설립한 매장으로서 수수료를 산정하기 위한 기존의 매출자료가 존재하지 않아, →→→는 피고와의 합의에 따라 고정수수료를 받기로 약정하고 이에 따른 수수료를 받은 것으로 보일 뿐이어서, →→→의 경우를 모든 판매원에게 일반화하기는 어렵고, 는 2006. 9. 경부터는 통상의 수수료 산정방법에 따른 수수료를 받아 왔으며, 2008. 9. 경부터는 앞서 본 것과 같이 피고가 2011. 하반기까지 시행한 고정수수료 제도에 따른 고정수수료를 받은 것으로 보인다 .

9) Sales clerks, including the Plaintiffs, sell only products manufactured and imported by the Defendant at each relevant store, and receive fees therefrom are the essential content of the instant contract, and it is difficult to say that the sales clerks themselves are an important factor in determining whether they are workers.

① The Defendant did not report the purchase of the fourth insurance policy to the Plaintiffs, or did not pay the insurance premium, and only the business income tax has been paid to the Plaintiffs. (2)

Therefore, as long as the plaintiffs do not constitute workers under the Labor Standards Act, the plaintiffs' claims on different premise are without merit without further review.

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed as it is without merit. Among the judgment of the court of first instance, the part against the defendant is unfair in conclusion, and thus, the defendant's appeal is accepted.

Of the judgment of the court of first instance, the part against the defendant is revoked and all of the plaintiffs' claims corresponding to the revoked part are dismissed. It is so decided as per Disposition.

Judges Kim Tae-ju

Judges Lee Jae-woo

Judges Kim Dong-soo

1) A year-based agreement was concluded.