208Gudan12316 Revocation of Disposition of Non-approval for Medical Care

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Korea Labor Welfare Corporation

March 11, 2009

May 13, 2009

1. On December 24, 2007, the Defendant revoked the Plaintiff’s disposition of refusal to grant medical care.

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. On July 25, 2007, the Plaintiff was subject to delivery service at ○○○○, a restaurant specializing in the Tuesluri-dong, Sinri-si. On July 25, 2007, the Plaintiff filed an application for medical care approval against the Defendant on February 1, 2007, after receiving an industrial accident of this case on the following grounds: “A traffic accident that conflicts with the car at ○○○, Sinri-dong, Sinri-si (hereinafter referred to as the “accident”) during the delivery of food and drink on board the Orsri-si, Sinri-si, king-si, king-si, king-si, king-si, and king-si, king-si, the upper part of the upper part of the instant accident (hereinafter referred to as “the instant accident”).

B. On December 24, 2007, the Defendant rendered the instant disposition rejecting the Plaintiff’s application for medical care on the ground that the Plaintiff’s application for medical care is difficult to be considered as a worker, on the ground that the Plaintiff’s business registration or the representative on the pertinent license and permit, who is externally and legally responsible for the operation of ○○○’s business, constitutes an insurance purchaser.

[Grounds for Recognition] Uncontentious Facts, Gap evidence Nos. 1, 2, and 3, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case where the plaintiff was not approved for medical care on the ground that the plaintiff was not a worker on the ground that the plaintiff was a real operator of ○○○○, who was an employer and a son, and was registered as a business operator under the name of the plaintiff on the request of ○○○○, but was actually registered as a business operator under the name of the plaintiff, and was actually supplied at ○○○○○, and was not

(b) Facts of recognition;

(1) On December 8, 2003, the Plaintiff’s ○○○○○○○○○, Sinsi-dong, Seoul Special Metropolitan City (a simplified taxable person) was registered as a business operator under the Plaintiff’s name, and on June 18, 2007, a report on the establishment of an employment and mountain re-insurance relationship was submitted under the Plaintiff’s name, and the employment and mountain re-insurance relationship was established from the 15th of the same month to the said ○○○○○○ place of business (the above ○○○○ was registered as the Plaintiff’s business operator from May 4, 200 to June 30, 203, and the industrial accident insurance relationship was established under the Plaintiff’s name from July 1, 200 to July 1, 203).

(2) approximately 20 square meters of the first floor of the building on the ○○○○-dong, Silung-dong, Silung-si, Seoul, where the above ○○○-dong establishment is located.

On February 24, 200, 200, ○○○, a punishment for the Plaintiff, entered into and renewed a lease agreement with ○○○, the owner of the building, with KRW 30,700,000,000 per month, KRW 220,000 per month, and KRW 220,000 per year. On the other hand, ○○ was transferred from ○○, the operator of the preceding ○○○○, and paid KRW 47,00,000 as premium for facilities, goods, etc.

(3) At the time of the instant accident, ○○○○ had four employees in charge of delivery, including the Plaintiff, and two employees in charge of main affairs. Other ○○○○ was in charge of ordering and calculating the orders in the carcter. Employees, including the Plaintiff, were paid ○○○○○ wages while working in the ○○○○○○○○, and the Plaintiff was paid KRW 2,40,000 per month, including overtime allowances.

(4) On August 17, 2005, an OOO entered into a monthly rent of KRW 700,000,000, which is the owner of the building, and KRW 130,000,000,000,000,000 for rent, which is used by the employees belonging to ○○○○○○○○ for a dormitory. At the time of the instant accident, six obs, including the obs for a ship operated by the Plaintiff at the time of the instant accident, are registered in the name of ○○○○. In addition, all obs, including the above Obs, were settled with a new card in the name of ○○○○○○○. Moreover, ○○○, etc., who supplied food materials, etc. to ○○○○○○○○, etc., was paid from ○○○ through the name of ○○○.

(5) After the instant accident, the Plaintiff filed a retirement allowance claim with ○○○, the actual operator of ○○○○, but was unable to receive it, the Plaintiff sent a written petition to the Ginman Regional Labor Administration in Ansan District on January 16, 2008, and was issued by the head of the said branch office with a correct number of money and valuables in arrears related to the unpaid retirement allowances of 3, 685, 090 won.

(6) Meanwhile, even after the instant accident, ○○○ continued to be operated by ○○○, and was closed on March 3, 2009, and ○○○○ was operated on January 30, 2009, with its trade name named on January 30, 2009 as the previous ○○○, and made a record of business operators, etc. by making the ○○○ himself/herself a winner under his/her name, the location of his/her place of business as the ○○○-dong, ○○-dong, a neighboring Sinsi-si, the place of business.

[Ground of recognition] Evidence Nos. 4 through 21, Evidence Nos. 2 through 4, the purport of the whole pleadings

C. Determination

(1) Determination of whether a worker is a worker under the Labor Standards Act shall be made based on whether, in substance, the form of a contract is an employment contract or a subordinate relationship with an employer for the purpose of wages in the business or workplace. Determination of whether a dependent relationship here exists shall be made by determining the content of the work, and shall be subject to the rules of employment or service, personnel regulations, etc. of the employer, and shall be subject to considerable direction and reduction by the employer in the course of performing the work, whether the employer designates working hours and working place and is detained by the employer, whether the employer is able to operate the business on his/her own account, such as holding the equipment or raw materials or tools of work, or having a third party perform the work on his/her behalf, whether the provider has a risk, such as the creation of profit and loss by providing labor, whether the nature of remuneration, whether the basic salary or fixed wage was determined, whether the source of wage was paid for wage and salary income, whether the employer has continued to provide the labor, and whether the social and social status of the worker is recognized by law or not.

(2) However, according to the above facts, although the plaintiff was registered as the representative of the above OO's business registration at the time of the accident, the employment and industrial accident insurance relationship was established with the plaintiff as the representative of the above OO. However, the lease contract for the ○○ store which falls under the industrial accident insurance contract and the dormitory of the employee is the plaintiff's name of ○○○○, the plaintiff's death penalty, and the ○○○○ store which was offered for delivery service was all under the name of ○○○'s name, and the money transaction, etc. related to the ○○○'s operation was conducted in all under the name of ○○○○○'s name; while the plaintiff in the above ○○○○○○ was in charge of the order and calculation work at the ○○○○ store, the plaintiff was actually paid wages to ○○○○'s employees, etc. after the accident, and the plaintiff's business relation was newly operated with the above ○○○'s employment relationship and wage.

(3) Therefore, the instant disposition that the Plaintiff did not approve the Plaintiff’s application for medical care on the premise that the Plaintiff did not constitute a worker is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition by admitting it.

Judge Choi-ho