(영문) 서울고등법원 2014.11.24.선고 2013나68704 판결

In the first place, the Defendant (the intermediate confirmation Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) shall pay to the Plaintiff (the intermediate confirmation Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) 20% interest per annum from each corresponding day to the day of full payment on each of the amounts indicated in the attached Table 1's Schedule, and from each corresponding day to the day of full payment. Preliminaryly, the Defendant shall pay to the Plaintiffs the amount calculated at the rate of 20% interest per annum per annum from each corresponding day to the day of full payment on each of the amounts indicated in the attached Table 2's Schedule.

【Claim for Counteraction for Intermediate Confirmation】

The plaintiffs confirm that they were not the defendant's workers.

【Purpose of Defendant’s Appeal】

Of the judgment of the first instance, the part of the defendant's shoulder as to the main action shall be revoked, and the plaintiffs' claims as to the above revoked part shall be dismissed (the defendant did not appeal against the counterclaim part of the interim confirmation).

Reasons

1. The plaintiffs' assertion of the ground of claim of this case

The plaintiffs, as their employees, retired while serving in the defendant's workplace. The defendant asserts that the defendant is seeking payment of retirement allowances, weekly paid leave allowances, and annual paid leave allowances as prescribed by the Labor Standards Act, since they do not pay them to the plaintiffs.

2. Facts of recognition;

A. The defendant was established in 198 as "C" and converted into a stock company in 2002, and thereafter, is a corporation whose purpose is operation business, education-related service business, publishing business, Internet English education business, etc. (1) The plaintiff V and B have the nationality of the Republic of Korea, but the rest of the plaintiffs are foreigners or persons with foreign sovereignty.

B. As of 2008, the Defendant’s size reaches approximately KRW 38.2 billion in sales, approximately 48,00 in students, and as of 2012, the Defendant has operated 157 English private teaching institutes nationwide, including 14 points directly operated by the Defendant. The Defendant first recruited the English language instructors in the same industry, thereby developing the system that allows foreigners who obtained the bachelor’s degree in the other countries to participate in the English lecture in Korea, and recruited the foreigners who have obtained the Plaintiff’s license in the outside countries as the Korean language lecturers for the operation of the system. The recruitment advertisements to recruit the Korean language instructors on the website (A) operated by the Defendant. If the Defendant revealed the time of employment through the above website, the Defendant decided to employ the Korean language instructors through the telephone, and then, the Defendant was required to submit the documents required for employment and working conditions (e.g., KRW 37,00, KRW 9651 in the contract for the English language instructor to the extent that it did not have been designated by the Defendant.

C. The main contents of the contract are as follows.

A person shall be appointed.

D. In addition, the Defendant required a senior citizen instructor to comply with the provisions that include the following contents, etc. (instruct14), Banach Fulty Gulty 15).

- He/she must set a good example during class hours, inform students of the instructor's personal information, or receive gifts or bribe from students.

- If the first class day or new students enter, send a letter of exchange to the student and explain the composition of the class and the contents of the task.

- should not discuss the determination of class classes for students and students.

-it shall not food for school hours and shall prohibit students from eating food for school hours.

- - Having students bleep with snow and ask questions, leading students to their co-ment.

- must observe the program virtual and class composition set by the Defendant.

- 100% English in all programmes shall be used.

- They should not confirm personal e-mail during class hours, or web tamping or play games.

E. Following the above procedure, the Plaintiffs entered into the instant language instructor contract with the Defendant, and requested compliance with the above provisions, and continued English classes with the Defendant’s primary and middle school students after having mainly completed the regular school classes at C operated by the Defendant during the period indicated below. The Plaintiffs worked for 3-6 hours a day, 4-5 days a week, and 28,000 to 45,00 won a day by multiplying the monthly working hours by the monthly working hours. The Plaintiffs received every month payment from the Defendant.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 2 through 36, 38 through 40, 50 through 70, Eul's statements in Gap's 1 through 4, 17, 21, 22, 24, 25, 28, 29, 31 through 48 (if there is a serial number, including a serial number; hereinafter the same shall apply) and the purport of the whole pleadings

3. Determination

A. Whether the plaintiffs are workers under the Labor Standards Act

(1) Relevant statutes and legal principles

Article 2 (1) 1 of the Labor Standards Act provides that "worker means a person who provides labor to a business or workplace for the purpose of wages regardless of the type of occupation."

The issue of whether a worker is a worker under the Labor Standards Act ought to be determined depending on whether an employer provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Whether a dependent relationship exists should be determined by comprehensively taking account of the following: (a) the employer’s contents of work; (b) the rules of employment or personnel regulations; (c) the employer is subject to considerable direction and supervision in the course of performing the work; (d) the employer designates working hours and working places; (e) whether the employer is bound by the employer; (e) whether the employer is capable of operating his/her business on his/her own account; (e) whether the employer owns equipment, raw materials or working tools; (e) whether the employer voluntarily owns equipment, raw materials or working tools; (e) the creation of profits and losses by providing labor; (e) whether the nature of remuneration is the subject of the labor; (e) whether the basic wage or fixed wage has been determined; and (e) whether the employer has continued to provide labor and exclusive rights to the employer; and (e) economic and social conditions, such as whether the status

However, the circumstances, such as whether the basic wage or fixed wage was determined among the above factors, whether the labor income tax was withheld, and whether it was recognized as an employee regarding the social security system, should not readily deny the nature of workers only by reason of the fact that the employer is not recognized as having been arbitrarily determined by taking advantage of the economic superior status (see Supreme Court Decision 2004Da29736, Dec. 7, 2006).

(2) Determination

On the other hand, there is no dispute between the parties that the plaintiffs did not receive basic pay or fixed pay, not earned income tax, but the acquisition tax of the place of business was withheld, and that the plaintiffs did not report to an employee in relation to social security systems, such as four major insurance premiums. However, according to the above legal principles, all these matters are matters that the defendant could arbitrarily determine in a superior position, and are merely secondary factors in evaluating the substance of labor relations between the plaintiffs and the defendant. In addition, it is difficult to view that the defendant's preparation of the contract, such as the name of the original language instructor contract of this case, as the name of the original language instructor contract of this case, as the name of the plaintiffs in the contract, would vary from the content of the general service science, which is the general service career truck, not from the defendant's opinion that it would be perceived that the plaintiffs would be treated as workers, and that it is not a key factor to determine the substance of labor relations (see, e.g., Supreme Court Decision 2002Du236475, Dec. 27, 2006).

Ultimately, the determination of whether or not the plaintiffs provided labor to the plaintiff in a subordinate relationship with the purpose of wages or an independent business operator, that is, the other parts of the above legal doctrine, namely, ① the contents of the labor provider's business, ② the labor provider is subject to the rules of employment or service regulations, ② the employer designates working hours and working places, ② the employer is bound by the employer, ③ whether or not the labor provider owns its own equipment, raw materials, working tools, etc., ④ whether the labor provider is capable of operating his/her business on its own account, ④ whether the labor provider has a risk, such as the creation of profits and losses, etc. through the provision of labor, ④ whether the 16 repair nature is the subject of labor itself, ② the existence and absence of the continuous relationship of the provision of labor and the degree thereof, etc., and the economic and social conditions faced by the plaintiffs and the defendant.

However, in full view of the facts acknowledged above and the evidence mentioned above, and the statements mentioned in Gap evidence Nos. 71 through 80, 83, 84, and 85, Eul evidence Nos. 62 through 74, 76 through 84, 89, and 90, the witness AB, the witness AC's testimony, the party's party's testimony, the party's party's examination result, the result of the party's on-site inspection, and the following circumstances mentioned below (a) through (f) acknowledged by the whole purport of the party's presentation, the evidence that the plaintiffs were independent business operators with the defendant is nothing more than anything else, while the evidence that the plaintiffs provided labor to the defendant in a subordinate relationship with the defendant is much more than anything else.

(A) Considering the following circumstances as to the content of the business and the process of performing the business, it is sufficient to evaluate that there was a considerable direction and supervision of the Defendant in the course of performing the business of the Plaintiffs.

Before entering into the contract for the English language instructor of this case, the Defendant provided an intensive education for one week whether the plaintiffs should teach in the English language institute of the defendant's English language, and thereafter, provided the defendant's private teaching institute teaching the way in which the plaintiffs should proceed with the English lecture through regular workshops, etc. during the contract period.

The plaintiffs, among the various English subjects, were engaged in lessons according to the class schedule determined by the defendant after prior consultation with the defendant, based on the subjects and time table set by the defendant. However, unlike the plaintiffs' opinions presented in the process of prior consultation, even if the defendant did not want to assign lectures to the plaintiffs, including weekend classes, it seems that it was practically difficult for the plaintiffs to demand the rejection or modification thereof.

The defendant unilaterally set the place of the plaintiffs' lecture, and the defendant did not have the right to choose a specific point or demand the change of the place of work among the defendant's English academic institutes.

The defendant determined and notified the plaintiffs in advance of the contents of the lecture and the lecture, and directly produced and delivered the teaching subjects necessary for the lecture. The plaintiffs proceeded with the lecture according to the contents of the lecture notified by the defendant and the teaching materials determined by the defendant. The defendant was prohibited from making a lecture using other teaching materials.

The contract of the original language instructor was explicitly stipulated in the installation of CCTV, and even though the main purpose of the installation of CCTV was the protection of instructors and not monitoring of instructors, the defendant installed CCTV in each lecture room, thereby monitoring whether the plaintiffs observe the lecture hours, the contents and attitude of the lecture, and the result of monitoring was also notified to the instructors.

In addition to the English lecture, the plaintiffs submitted an assessment report on the student's attitude of class, degree of achievement, sexual performance, etc. to the defendant using the defendant's ERP system. The defendant attended the parents' conference held by the defendant and explained about the lectures to parents, and according to the defendant's instruction, the plaintiffs were required to attend a regular tra bargaining resolution or workshop (one year and four times) and other tra bargaining resolution or workshop to improve the ability of lectures.

The Defendant regularly conducted the assessment of various items (basic items: whether the class begins and ends at the regular time, whether the class is well fixed, whether the teaching materials are well prepared, whether the Jindo and the evaluation input are well implemented, whether the student complies with the lecture method set by the Defendant, whether the student’s question is accurately responded, and whether the student’s task is properly confirmed. On the other hand, after conducting the assessment of his/her work according to the classification of various items (whether the class is controlled to go into the class, whether the student’s activity is extremely strongly strongly strong, and whether the result is notified to the individual, and the result was sent to the individual, or the instructor’s personal interview was conducted in relation to the assessment results.

In order to use the Plaintiffs’ leave, the Defendant requested before one month prior to the scheduled date of leave to obtain prior approval, and if the Plaintiffs are unable to attend classes due to personal circumstances or diseases, it shall obtain prior approval 24 hours prior to the scheduled date of leave.

The defendant's non-compliance with the defendant's instructions or regulations or low class evaluation may be subject to probation for a period from 30 to 180 according to the contents and degree of violation. The defendant unilaterally reduced the class hours of the instructor, ordered the instructor to undergo education, or prevented the use of leave during the period of probation.

The defendant demanded to make separate service rules applicable only to the original language instructors, such as the plaintiffs, and to comply with them. This is the same as the facts recognized in the above 2.

(B) We examine working hours and places of work. Even though the working hours of the plaintiffs were relatively free, they were mainly based on the characteristics of the work, which is the original language instructor who provides the elementary school students and middle school students with English language books after school hours. As determined in the above paragraph (a) that the defendant could unilaterally designate the working hours of the plaintiffs, the defendant was in charge of the plaintiffs' work by allowing the plaintiffs to attend school 20 minutes before school hours and go to the defendant's ERP system, and the non-compliance with the working hours was strictly required in light of the fact that there was a ground for disadvantageous disposition against the plaintiffs through the "20 minutes provision" or "hours provision". The plaintiffs were unable to give lectures at a place other than the individual lecture room in a private teaching institute designated by the defendant, and it was determined in the above paragraph (a) that the plaintiffs did not have the right to arbitrarily choose the working place.

(C) As to the ownership relationship of the workplace, the Plaintiffs provided labor to conduct their duties, and all the equipment was owned by the Defendant, and the teaching materials of lectures were manufactured and designated by the Defendant. Moreover, the instant contract for a senior citizen instructor provides that all the original materials produced by the instructor shall be the property of the Defendant.

(D) Regarding the possibility of substitution of work, the structure of occurrence of profit and loss, the Plaintiffs were prohibited from driving their own lectures on behalf of another person. Moreover, the Plaintiffs merely received a lecture and a urgency for the duration of lectures as designated by the Defendant, and the Plaintiffs did not have any profit or risk of loss. Accordingly, the Plaintiffs cannot be deemed an independent business entity.

(E) Regarding the nature of remuneration, the plaintiffs received remuneration at the predetermined rate in proportion to the lecture hours, and therefore, the plaintiffs should be deemed to have received remuneration for providing labor (the Supreme Court Decisions 2006Da2004Da29736 Decided December 7, 2006, Supreme Court Decision 2005Du8436 Decided January 25, 2007, the plaintiffs received the amount calculated by multiplying the fixed number of lecture hours per hour from the defendants by the fixed number of lecture hours, and one of the disciplinary signs recognizing that the number of students and the increase or decrease of the revenues of private teaching institutes did not affect the number of students, but the defendant's average 24 hours per week (104 hours per month) and 1,030,000 won per month, which is average monthly income of Korean university instructors, 300,000 won per month, and 970,000 won per month, 70,000 won per month's wage per hour, and 97.

(f) We examine the exclusive nature of the employer and the continuity of the provision of employment.

The plaintiffs were required to teach 24 hours a week as they are the contents of the lessons set forth in the Defendant Slargs and the time table, and it is evident that the plaintiffs were students of elementary school or middle school who were born in Korea, and most of the plaintiffs had no such lecture experience or lecture career, and that only a considerable time has been required for the preparation of lecture itself (the Party witness AC testified that it is necessary to prepare for three hours of lecture).

In addition, in addition, in addition to lectures, the plaintiffs entered a mentor for students in the ERP system, marked the work submitted by students, entered the results of the examination, etc., and then, the plaintiffs, who had no alternative experience, seems to have required considerable time for implementation of the work.

In such a situation, the plaintiffs were performing the lecture repeatedly according to the schedule of fake unit, and there was little time for the plaintiffs to give lectures in other English private teaching institutes or conduct a separate business operation by using hours without any lecture. Thus, the plaintiffs' exclusive nature of the plaintiffs' labor provision against the defendant is recognized (in this regard, the defendant argued that the plaintiff X, X, and G were demoted in other private teaching institutes while serving in the defendant, or that he did not go to an individual. However, although the above plaintiffs' e-mail output was insufficient to recognize it by itself, there is no evidence to acknowledge it otherwise. Even if the above plaintiffs were temporarily in addition to the hours of lectures, there is no evidence to prove that the above plaintiffs committed an exclusive nature of labor provision against the defendant.17)

In addition, in light of the fact that the plaintiffs continued to provide labor during their respective period of service, and even according to the defendant's assertion, it is recognized that the continuity of the provision of labor is also recognized in view of the fact that the instructors who worked for the defendant for 1,374 persons who worked for the defendant for 1,374 years or more from 2012 are about half of the number of instructors (47.7%).

(3) Sub-decisions

Therefore, the plaintiffs are deemed to be workers under the Labor Standards Act who provided labor at the workplace operated by the defendant for the purpose of wages. Therefore, the defendant's argument that "the plaintiffs are those who experience Korean culture mainly as foreigners from advanced countries such as the United States, etc., and who intend to return to Korea with their home country after receiving high remuneration for a short period of time, and have been in a social and economic position equal or superior position with the defendant due to their unique characteristics. In this regard, the plaintiff's argument that "the contract for the original language instructor of this case constitutes a delegation contract or a non-exclusive services contract with strong contract character" is without merit.

B. Nature of employment contract between the plaintiffs and the defendant

The defendant asserts that the plaintiffs should calculate the weekly paid leave allowance, annual paid leave allowance, and retirement allowance as prescribed in attached Table 2 of the Enforcement Decree of the Labor Standards Act because they fall under the "part-time worker" as prescribed by the Labor Standards Act.

On the other hand, Article 2 subparagraph 8 of the Labor Standards Act provides that "part-time workers" means workers whose contractual work hours per week are shorter than those of ordinary workers engaged in the same kind of work at the workplace concerned. However, there is no evidence to acknowledge that the plaintiffs were workers under the short contractual work hours per week compared to those of ordinary workers engaged in the English translation lectures of the same kind as the plaintiffs in the labor site of the defendant. Thus, the defendant's assertion is without merit.

(1) Relevant legal principles

Retirement allowances are money having the nature of wages that an employer continues to work for a certain period and pays to a retired employee as compensation for his/her continuous service. Specific claims for retirement allowances arise under the condition that the employee is retired upon the end of his/her continuous service, and waiver of a claim for retirement allowances that occurs at the time of the final retirement is null and void in violation of the Labor Standards Act, which is a mandatory law (see, e.g., Supreme Court Decision 97Da49732, Mar. 27, 1998). Therefore, denying the contents of the agreement in violation of the Labor Standards Act, which is a mandatory law, should not be deemed to contravene the concept of justice, the principle of equity, or the principle of good faith.

(2) Obligation to pay retirement allowances, etc.

1. Paragraph 1.12. of this case, it is recognized that the term "a person agrees not to fall under other installment payments provided to regular workers, including retirement allowances, health insurance, and pension, and these matters shall be the sole responsibility of the instructor." However, according to the above legal principle, it is reasonable that this constitutes an agreement on the prior waiver of the right to claim a retirement allowance. Accordingly, the defendant is obligated to pay a weekly paid leave allowance, annual paid leave allowance, and retirement allowance to the plaintiffs.

(3) Determination of payments

In addition to the statement in Gap evidence No. 49, the plaintiffs' monthly working hours and hourly retirement allowances are calculated on the basis of the plaintiffs' monthly working hours and hourly retirement allowances (the court of the first instance sought an explanation as to whether there is a dispute over the calculation of the plaintiffs' claim amount per se on the date of the first pleading. The defendant did not dispute over the calculation method of the plaintiffs' claim amount and the calculation method of retirement allowances under the court of the first instance which has partially accepted it).

Since the working hours of the plaintiffs are different according to the schedule of the demotion that the monthly working hours of the plaintiffs are fixed each month, the monthly working hours of the plaintiffs should be calculated by dividing the monthly working hours of the plaintiffs by the number of days per month per five days as requested by the plaintiffs, by the amount of their monthly working hours per five days. The sum of the monthly paid leave allowances of the plaintiffs is the same as the amount indicated in the column of the attached Table 1, the monthly paid leave allowances of the plaintiffs, which is calculated by dividing the annual working hours of the plaintiffs by the number of days per year, and the daily paid leave allowances calculated by multiplying the daily working hours of the plaintiffs by the average wage of the plaintiffs per day per hour and the number of days per year paid by the plaintiffs by the number of days per month per year is the same as the amount stated in the column of the same Table, and the monthly paid leave allowances of the plaintiffs were not claimed for the retirement allowances of the plaintiff (which is less than 1, 200).

Therefore, the defendant is obligated to pay to the plaintiffs each amount in the column of attached Table 1, which is the sum of weekly paid leave allowances, annual paid leave pay, and retirement pay, and to pay damages for delay calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from each corresponding day to the day of full payment, on the day following the expiration of 14 days from each of the plaintiffs' retirement dates.

D. Judgment on the Defendant’s assertion of violation of the good faith principle

Upon acceptance of the claim by the plaintiffs, the defendant must bear additional losses that were not originally scheduled at the time of determining the terms and conditions of the contract with the original language instructor at the cost of retirement, other legal allowances, and four premiums. On the other hand, the original language instructor enjoys any additional benefits that are not intended. This not only causes unexpected large-scale losses to the defendant, but also causes serious impacts on the defendant's share price, thereby seriously threatening the growth of the defendant's company. This result argues that it is not acceptable against the good faith in light of the concept of justice and equity.

However, it is against the constitutional value or the compulsory nature of the Labor Standards Act that attempts to limit the fundamental rights of workers guaranteed as compulsory provisions such as the right to claim retirement allowances through the application of the principle of good faith. Thus, it is not permissible to take precedence over the employer’s wrongful trust on the ground of good faith, barring special circumstances, even though the Labor Standards Act guarantees certain rights to workers under the compulsory provisions. The evidence presented by the Defendant in this case does not recognize that the Defendant’s application of the instant claim would cause serious managerial difficulties to the Defendant, or that the Defendant’s existence would be endangered, and the instant claim for retirement allowances, etc. based on the compulsory provisions under the Labor Standards Act cannot be deemed as unlawful on the grounds cited by the Defendant. Therefore, the Defendant’s aforementioned assertion is without merit (the Defendant appears to have asserted as above based on the Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013, which is extremely dangerous for the employer to exclude regular wage negotiations from ordinary wage and wage bonuses, etc. based on the employer’s expectation of the basic wage size and wage rate from ordinary wage.

4. Conclusion

Therefore, the plaintiff B's primary claim is justified, and the remaining plaintiffs' primary claim except the plaintiff B is justified within the above scope of recognition, and the remaining primary claim shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is. Accordingly, the defendant's appeal is dismissed and it is so decided as per Disposition.

Judges

The presiding judge, the deputy judge;

Judges Kim Gung-sik

Judges Lee Young-young

Note tin

1) Evidence Nos. 1 and 2

2) The defendant mainly uses the term "corror" as the term referring to the status of the plaintiffs in the trial. However, the defendant's reply and the preparatory document dated July 13, 2012, etc. used the term "corror" or "cordrator", while the plaintiffs are mainly using the term "corror" or "corrator", so the term is used.

3) Records 488 pages

4) Evidence No. 3

5) The evidence No. 4-1 is written as "on hour, i.e., i., 37,000 square meters for work, i.e., 96 Hours guarth."

6) Evidence No. 4-1, 2

7) Evidence No. 5-1

(viii)one translation into "end, terminated, or terminated," as the context requires;

9) Hourly rate (the defendant asserts that it should be translated into ‘hour rate’)

10) The defendant asserts that profes action de develop management leve (the defendant should be translated into "a lecture for the extension of professionalism").

11) The plaintiff asserts that the period should be translated into â€˜the grace period' or â€˜the grace period', and the defendant should be translated into â€˜the grace period' or â€˜the grace period'. The above period shall be translated into â€˜the probation period' or â€˜the probation period' in consideration of the nature of the disadvantage disposition against the plaintiffs.

12) The defendant asserts that de facto translation should be made into a "compensation deduction"

13) Claim that the person responsible for the management of affairs, etc., should be translated into “a partnership without prior notice”.

14) Evidence No. 6

15) Evidence No. 7

16) Supreme Court Decision 94Da22859 Decided December 9, 1994 ruled that "specific and individual direction and supervision" is "specific and individual direction and supervision", but Supreme Court Decision 2004Da29736 Decided December 7, 2006 ruled that "reasonable direction and supervision" is "reasonable direction and supervision."

17) For reference, the question and answer column of the web page referred to in paragraph 2.b. of the above 2.B. that recruited the original language instructors is whether or not they will take money in return for any question whether or not they will take money in return for any other place while on the job?" There is an answer to the purport that "E-2 visa will be issued under the sponsor of the employer (employer). It will be included in the contract with the party that it is prohibited that the external work of the workers (employe) will be prohibited (Evidence 3 of the A)."

18) 19 pages of the briefs dated October 10, 2014