2011Du7076 Revocation of the Re-Adjudication on Relief Request for Unfair Dismissal and Unfair Labor Practices

A person shall be appointed.

Ulsan (Ulsan)

Law Firm Ma350,00

The Chairman of the National Labor Relations Commission

Litigation Performers***

AA Stock Company

Seoul

Representative Directors & & & & & &

Attorney Lee In-bok et al.

Supreme Court Decision 2008Du4367 Decided July 22, 2010

Seoul High Court Decision 2010Nu23752 Decided February 10, 201

February 23, 2012

All appeals are dismissed.

The costs of appeal are assessed against the Intervenor, and the remainder are assessed against the Defendant.

Determination as to the grounds of appeal by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”);

of this section.

1. 원심은 근로자파견관계에 해당하는지 여부는 당사자가 설정한 계약형식이나 명목에 구애받지 않고 계약목적 또는 대상의 특정성, 전문성, 기술성, 계약당사자의 기업으로서 실체 존부와 사업경영상 독립성, 계약 이행에서 사용사업주의 지휘 · 명령권 보유 등을 종합적으로 고려하여 그 근로관계의 실질을 따져서 판단하여야 한다고 전제한 다음, 그 채용증거를 종합하여 원고와 P기업 대표 이▩▩ ( 이하 ' P기업 ' 이라고 한다 ) 사이에 체결된 근로계약의 내용, P기업과 참가인 사이에 체결된 도급계약의 내용, 참가인에 의한 참가인의 사내협력업체 관리 실태, 참가인에 의한 각종 업무표준의 제정 및 실시 사실과 함께, 참가인과 P기업 사이에 체결된 위 도급계약에 따라 P기업 소속의 근로자들이 참가인에게 노무를 제공하는 내용과 방식, 그에 관한 참가인의 지배 내지 통제의 내용과 범위 등에 관한 판시사실을 인정하고, 그 인정사실에 비추어 원고가 P기업에 고용된 후 참가인 사업장에 파견되어 참가인으로부터 직접 노무지휘를 받는 근로자파 견관계에 있었다고 판단하였다 .

Furthermore, the Plaintiff’s direct production process of the manufacturing business, such as the assembly of automobiles, etc., conducted by the Plaintiff, does not include the Plaintiff’s temporary work agency business pursuant to Article 5(1) of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006) but does not exclude the application of the direct employment deeming provision under the main sentence of Article 6(3) of the same Act on the ground that even if the P enterprise did not obtain permission from the temporary work agency business, the Plaintiff’s direct employment relationship was established between the Intervenor and the user company since March 13, 2004 by continuously being dispatched to the Intervenor after the lapse of two years from March 13, 202, and the Intervenor’s employment relationship was denied with the Plaintiff, and it was clearly difficult for the Intervenor to prevent the Plaintiff from entering the Plaintiff’s workplace and not receive his labor.

The judgment of the court below is just in accordance with the purport of the judgment of the Supreme Court's remand, and there is no error in the misapprehension of legal principles as to the classification of worker dispatch and contract or dismissal, the violation of the rules of evidence, the incomplete hearing, the contradiction of reasons or the lack of reasons, etc., as

The intervenor asserted that the intervenor's binding force cannot be recognized because the intervenor did not judge at a collegiate body composed of not less than two-thirds of all Justices pursuant to Article 7 (1) 3 of the Court Organization Act while modifying the opinion on the interpretation and application of the law expressed by the Supreme Court decision of March 24, 2006 in the judgment of remanding the case of this case, since the intervenor did not contain an opinion on the interpretation and application of the law as a judgment which did not state the reasons pursuant to Articles 4 and 5 of the Act on Special Cases Concerning the Procedure for Appeal, it is obvious that the remand of this case is in conflict with the judgment of remanding the case of this case and there is no room to violate Article 7 (1) 3 of the Court Assistance Act. Thus, the above argument cannot be

2. The defendant and the intervenor acknowledged the fact that the intervenor dismissed the plaintiff by deeming the intervenor as the employer against the plaintiff, and asserts that the court below committed an incomplete hearing or omission of judgment by failing to further deliberate and decide on the legitimacy of the dismissal.

However, the defendant's decision of retrial, which is the object of the revocation lawsuit of this case, maintains the decision of the Regional Labor Relations Commission which rejected the plaintiff's request for remedy on the ground that the intervenor is not the plaintiff's employer, and dismissed the plaintiff's request for review which was dissatisfied therewith. Thus, the defendant's claim that the defendant dismissed the plaintiff's request for remedy and the request for review on the ground that the plaintiff's request for review was just and justifiable in the lawsuit of this case, is not allowed since it is nothing more than adding or changing other grounds that are not recognized as identical in the original and basic facts. Therefore, even if the court below did not review and decide on it, it cannot be

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan

Justices Noh Jeong-hee

Justices Lee In-bok et al.

Justices Park Byung-hee