[1] Criteria for determining whether an employee is a worker under the Labor Standards Act

[2] The case holding that a debt collection officer who concluded a debt collection service entrustment agreement with Gap credit information company and majority of the matters that can replace the rules of employment shall be included, which constitutes "worker" under the Labor Standards Act and concluded the debt collection service entrustment agreement with the grounds that correspond to the grounds for layoffs

[3] The method of calculating the average wage in a case where the average wage calculated in accordance with the Labor Standards Act, etc. is considerably less or more than the ordinary wage due to changes in the amount of wage due to the extraordinary and uncertain circumstances

[1] Whether a worker is a worker under the Labor Standards Act shall be determined by 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 earning wages in the business or workplace. Whether the above subordinate relationship is determined by the employer, and whether the employer has a considerable command and supervision in the course of performing the work, whether the employer is designated as working hours and working place, whether the employer is bound by the employer, whether the employer is able to operate his/her business on his/her own account, such as possessing equipment, raw materials, working tools, etc., or having a third party employ and act on behalf of the employer, and whether the risks, such as the creation of profit and loss through the provision of labor, are the nature of the work itself, whether the basic salary or fixed wage was determined, and whether the wage tax was withheld from the wage income tax, and whether the continuousness and degree of the employment relationship with the employer, and whether the status of the employee was recognized as an employee under the Act on Social Security System, etc., should be determined voluntarily by taking into account the economic and social security system or other factors.

[2] The case holding that a debt collection officer who concluded a debt collection service entrustment agreement with Gap credit information company and majority of the matters that can replace the employment rules, and concluded a debt collection service agreement with the grounds that correspond to the grounds that constitute termination, and that the debt collection officer who handled the debt collection business constituted "worker" under

[3] Even if the average wage was calculated in accordance with the principle stipulated in the Labor Standards Act and the Enforcement Decree of the Labor Standards Act, there was a change in the amount of wage due to the worker's special and remote circumstances that might lead to his retirement, and thus, in exceptional cases where it is deemed that the average wage calculated as above is significantly less or more reasonable than ordinary cases when comprehensively assessing all the circumstances, including the entire period of work, the period of change in the amount of wage, the period of time in which the amount of wage changes, and the degree of change in the amount of wage, etc., the calculation of retirement pay based on such exceptional circumstances cannot be permitted in light of the spirit of the Labor Standards Act that intends to calculate the amount of retirement pay based on the worker's ordinary living wage. Therefore, the average wage should be separately calculated in a reasonable and reasonable way that can reflect the ordinary living wage of the worker. However, if the average wage of the worker is significantly less or less than ordinary cases, the average wage should be calculated in accordance with

[1] Article 2 of the Labor Standards Act/ [2] Article 2 of the Labor Standards Act/ [3] Article 2 of the Labor Standards Act

[1] [2] Supreme Court Decision 2004Da29736 Decided December 7, 2006 (Gong2007Sang, 104) Supreme Court Decision 2006Do777 Decided September 7, 2007 (Gong2007Ha, 1607) Supreme Court Decision 2008Do816 Decided July 10, 2008 (Gong2009Da51417 Decided October 29, 2009) / [3] Supreme Court Decision 2006Da17287 Decided May 28, 2009 (Gong2009Ha, 2001)

Plaintiff 1 and 17 others (Attorney Cho Jae-hun et al., Counsel for the plaintiff-appellant)

Future Credit Information Co., Ltd. (Law Firm Democratic, Attorneys Yoon Jae-sik et al., Counsel for defendant-appellant

Seoul High Court Decision 2009Na43883 decided October 16, 2009

The part of the judgment of the court below against the defendant against the plaintiff 2 is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals by the defendant are dismissed. The costs of appeal against the appeal are assessed against

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The issue of whether a contract constitutes a worker under the Labor Standards Act is a contract for employment or a contract for work, and whether a worker has a subordinate relationship with an employer for the purpose of wages in a business or workplace should be determined depending on whether the employer provided the worker with labor. Whether the above subordinate relationship is determined by the employer and the employer should be subject to the rules of employment or the rules of service, etc. of the employer, whether the employer is subject to considerable direction and supervision in the course of performing the work, whether the employer is subject to designation of working hours and working place, 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., to create profits through the provision of labor, and cause losses, etc., and whether the nature of remuneration is the subject of the work itself, whether the basic wage or fixed wage was determined, whether the continuousness and degree of the provision of labor, and whether the status of the employee was recognized as a worker under the Acts and subordinate statutes on the social security system, etc.

Recognizing the reasoning of the judgment of the court of first instance, the court below determined that since the defendant company is subject to various regulations established under the Use and Protection of Credit Information Act, it is difficult to properly respond to the strong control of the worker in charge of the business, only by contract or delegation contract itself, and that there is no difference in actual working hours and place designation, check of uniforms and appearance, work instructions and education and training, disadvantageous measures, etc. against the plaintiffs due to lack of substantial difference in the scope of duties or direction and supervision between regular workers and commissioning workers, and that the plaintiffs also work hours and place, check of uniforms and appearance, work instructions and education and training, disadvantageous measures, etc. are highly high-brued, and the plaintiffs have been engaged in only work of the defendant company and continued automatically and continuously due to automatic renewal of the contract period. In light of the contract, rules of employment and personnel regulations, the defendant company's exclusion provisions were included in the scope of application of "free vocational income officer", or allowed debt collectors (or debt collectors) to convert into office, debt collection guidelines and various reasons corresponding to the contract terms and conditions of the defendant company's and insurance premiums.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law such as misconception of facts against the rules of evidence or misapprehension of legal principles as to the recognition of workers.

2. Regarding ground of appeal No. 2

Even if the average wage was calculated in accordance with the principle prescribed by the Labor Standards Act and the Enforcement Decree of the Labor Standards Act, if there was a change in the amount of wage due to the special and incidental circumstances regarding the worker's retirement for a certain period of time, and as such, in such exceptional cases where it is deemed that the average wage calculated as above is significantly less or more than ordinary cases when comprehensively assessing all the circumstances, including the entire period of work, the period during which the amount of wage changes, the amount of wage changes, and the degree of changes in the amount of wage, etc., it is not permissible in light of the spirit of the Labor Standards Act that intends to calculate the amount of retirement allowance based on the worker's ordinary living wage. Thus, the calculation of the amount of retirement allowance based on such exceptional circumstances is not permissible in light of the spirit of the Labor Standards Act that intends to calculate the amount of retirement allowance based on the worker's ordinary living wage. Thus, the average wage should be separately calculated in a reasonable and reasonable way that can reflect the reality of the worker's ordinary living wage (see, e.g., Supreme Court Decision 2006Da17287).

Based on its adopted evidence, the court below determined that the plaintiffs are obligated to pay each of the corresponding amounts stated in the column for the amount received in the calculation sheet of this case for three months prior to their retirement by receiving each corresponding amount as stated in the item column for receipt of the calculation sheet of this case from the defendant company while working for the defendant company for each of the corresponding periods stated in the calculation sheet of the retirement allowance in the attached Table (hereinafter "the calculation sheet of this case") as stated in the judgment below, and that each of the above average wages is corresponding to the amount stated in the item for one day of average wages as stated in the calculation sheet of this case for three months prior to their retirement, and that each of the above average wages cannot be deemed as significantly more than ordinary

In light of the above legal principles and records, the above judgment of the court below against the remaining plaintiffs except the plaintiff 2 is just, and there is no error of law such as misunderstanding of legal principles as to the calculation of average wages as otherwise alleged in

However, we cannot agree with the judgment of the court below on the plaintiff 2 for the following reasons.

According to the facts and records acknowledged by the court below, ① wages paid by Plaintiff 2 for three months prior to the date of his retirement from the Defendant Company are the total of KRW 5,041,50 on November 25, 2005, KRW 43,632,50 on December 25, 2005, KRW 44,747,50 on January 25, 2006, KRW 53,421,50 on the aggregate of KRW 43,632,50 on December 25, 2005, KRW 43,632,50 on the monthly wages paid by Plaintiff 2 for 205, KRW 204 on December 25, 200, KRW 204 on the annual salary paid by the Defendant Company for 205, KRW 46,770, KRW 821,808, KRW 405, KRW 25,257,365,257,295,25.

Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that the wage that Plaintiff 2 received during the three months prior to the retirement date is considerably higher than the ordinary living wage that Plaintiff 2 received during the entire period of employment. Accordingly, the average wage of Plaintiff 2 is not calculated based on the wage that was paid during the three months prior to the retirement date, but rather, by a reasonable and reasonable method that can reflect Plaintiff 2’s ordinary living wage as true.

Nevertheless, the court below erred by misapprehending the legal principles as to the calculation of average wages, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant as to the plaintiff 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. All of the defendant's remaining appeals are dismissed, and the costs of appeal as to the dismissal of appeal are assessed against the defendant who is the losing party. It is so decided as per Disposition by

Justices Kim Young-ran (Presiding Justice)