(영문) 수원지방법원 2012.2.9. 선고 2010구합14825 판결

The Defendant’s non-recognition disposition that lost insured status under the Employment Insurance Act from August 22, 2007 against the Plaintiff on December 8, 2009 is revoked.

Reasons

1. Details of the disposition;

A. On March 10, 1982 and March 10, 1982, the Plaintiff joined the Korean Racing Association, and was registered as B on August 22, 2007 and became the head of C Headquarters on January 2, 2009, and retired on August 21, 2009.

B. On December 8, 2009, the Defendant notified the Plaintiff on December 8, 2009 that the Plaintiff was not a worker under the Employment Insurance Act from the time when the Plaintiff was employed as B (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entries in Gap evidence 1 through 4 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Even if the Plaintiff is in office as B of marina society, it constitutes a worker who actually performed duties under the direction and supervision of the president of marina society, but the instant disposition made on the premise of objection is unlawful.

(2) There is no example to refund the employment insurance premium already collected by the executives of marina society, while there is no insured status under the Employment Insurance Act, and there is no example to refusing the above executives to apply for unemployment benefits. As above, the Plaintiff also trusted the Defendant’s opinion that the executives of marina society are workers, and applied for unemployment benefits by continuously paying the employment insurance premium, and the Defendant denied the Plaintiff’s worker status against the above trust and applied for the instant disposition. This contradicts the principle of trust protection and self-defense.

Furthermore, according to the defendant's interpretation, it is unfair to view an employee who is not an executive officer as much as he/she has continuously worked until the retirement age, and the defendant is likely to not return the employment insurance premium already collected, thereby making double benefit. Since the benefit of benefits is denied retroactively after the occurrence of the insurance accident called unemployment, it is obvious that it would be against the principle of insurance and bring about many legal disputes in the future, and even if considering such social risks, there is no justification in the disposition of this case.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the Plaintiff’s worker status

(A) In determining whether a contract constitutes a worker under the Labor Standards Act, regardless of whether the contract is an employment contract under the Civil Act or a contract for work, and whether an employee provides labor in a subordinate relationship with an employer for the purpose of wages in substance, regardless of whether the contract is an employment contract or a contract for work. In determining whether a subordinate relationship exists, the determination of whether the contents of work are determined by the employer and are subject to employment rules, employment regulations, service regulations, personnel regulations, etc., whether the employer is specifically and directly directed and supervised by the employer, whether the time and place of work are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker has a characteristic of work, whether the basic wage or fixed wage has a characteristic of work itself, whether the wage has a characteristic of wage, whether the wage is withheld at source, whether the continuous provision of work and the degree and degree of exclusive employment relationship, and whether the status of an employee is recognized by other Acts and subordinate statutes, and whether the company’s economic, social, and social standards are determined should be comprehensively taken into account (see, 205).

(B) In light of the above legal principles, comprehensively taking account of the following circumstances acknowledged as a whole by adding all or some of the statements in Health Units, Gap evidence Nos. 4 through 26, Eul evidence Nos. 1 through 13 (including paper numbers) to the purport of the entire pleadings, the plaintiff's assertion that the plaintiff still needs to be regarded as a worker, since it is difficult to view that the plaintiff was a worker who was engaged in a subordinate relationship under the direction and supervision of the chairperson of the Mar Society, even after he was employed as a B of the Mar Society.

1) Article 26 of the Korean Racing Association Act provides that "standing directors shall execute marina businesses as prescribed by the articles of association," Article 32 provides that "an amendment to the articles of association, and an enactment and amendment of important bylaws, etc." shall be decided by the board of directors. Article 20 of the Articles of association of the Korean Racing Association provides that "an amendment to the articles of association, and an enactment and amendment of regulations" shall be made for deliberation and resolution by the board of directors." In light of the fact that the articles of association of the Korean Racing Association provides that "an amendment to the articles of association, and an amendment to the regulations," etc.

2) Furthermore, when the Plaintiff is appointed as the head of the headquarters, the head of the headquarters shall exercise overall control over the management activities of the affairs set forth in the articles of association and regulations of the marina Society, and the head of the headquarters shall endeavor to achieve the management objectives of the marina Society, prepare and submit a report on the performance of the year's management objectives to the Chairperson every year, and prepare a performance-based contract containing the content that "the evaluation of the management performance of the head of the headquarters shall be conducted in accordance with the regulations set forth in the Mapo Society Management Evaluation Manual for the pertinent year" (the Plaintiff stated to the effect that it was not prepared at the time of the newspapers, but the head of the

3) The Plaintiff asserts that the above contract is merely a formal form. However, the management goal is set according to the above contract, the management performance is assessed, the remuneration system has been altered under the application of the employee salary regulations, rather than the employee salary regulations, and the payment of performance-based incentives according to the performance evaluation other than the basic annual salary was received. According to this, it is difficult to readily conclude the above contract as a formal form, and there is no other data to reverse this. In addition, it is reasonable to deem that considerable of the remuneration the Plaintiff received at the time as remuneration for the management performance rather than the remuneration for the provision of labor. Furthermore, the circumstances of the Plaintiff’s assertion alone do not interfere with the above determination, such as the fact that the upper limit of performance-based rates compared to the performance-based standards for employees of marina society or the annual salary is too small

4) In the case of approval documents, approval is deemed to have been made in accordance with the delegation discretionary rules of marina Society, and exceptionally, with respect to matters deemed important among individual approval matters, the person in charge is deemed to have obtained approval from the chairperson of the headquarters, and there is no evidence to deem that he/she obtained approval from the chairperson of the headquarters for all discretionary matters.

5) Unlike employees, the Plaintiff is not subject to the rules of employment, collective agreement, service, and personnel regulations. On the other hand, the Plaintiff exercised personnel rights within the scope delegated by the above personnel regulations as the head of the headquarters, and there is no evidence to deem that it was subject to the rules of marina Society employment as well as the welfare regulations, etc., and there is no reason to believe that the Plaintiff was unaware of the Chairperson’s instructions or approval. 6) The Plaintiff appears to have participated in the management activities of marina Society by exercising the voting rights of the board of directors under the articles of incorporation as B with the right to vote of the board of directors. Furthermore, there is no evidence to deem that the Plaintiff’s agenda approved by the Chairperson

7) Furthermore, solely on the basis of the Plaintiff’s assertion that the assessment of the president is reflected in the determination of reappointment, it cannot be deemed that the Plaintiff’s specific performance of duties is based on the direction and supervision of the president.

(2) If an administrative agency continues to take certain measures by mistake on other arguments, such as violation of the principle of trust protection and the principle of self-defense, it cannot be deemed that the administrative agency subsequently found and reasonably changed errors and thus contravenes the principle of trust protection or the principle of self-defense of the administrative body (see, e.g., Supreme Court Decisions 92Nu2325, Oct. 13, 1992; 92Nu14021, Jun. 11, 1993). In light of the foregoing, there is no dispute between the parties that received employment insurance premium from the public health team and the Korean Racing Association executives and recognized the unemployment benefits as being paid, but there was no computer system or system to confirm whether an executive is an ordinary employee. In light of the foregoing, it is deemed that the Plaintiff did not confirm whether the executive is an employee or not, and thus, it cannot be deemed that the Defendant expressed a public opinion in the Plaintiff. Moreover, it cannot be deemed that the correction of the previous error and did not violate the legal principles of self-defense.

Furthermore, even if an executive officer is deemed to have suffered more loss than his/her employee as a result of his/her wishes, the instant disposition cannot be deemed unfair, and there is no ground for applying the principle of insurance based on private insurance to cover the eligibility as an insured under the Employment Insurance Act, and the Plaintiff’s assertion that there is social hazard is merely an abstract part of the reasoning and cannot be deemed to affect the legality of the instant disposition.

(3) Sub-determination

Therefore, the disposition of this case is legitimate, and the plaintiff's assertion disputing it is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.