2015Da252891 Action

1. A;

2. B

3. C

Central Credit Information Company

Seoul Central District Court Decision 2013Na62611 Decided November 17, 2015

April 15, 2016

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Determination as to whether a worker is a worker under the Labor Standards Act ought to be made depending on whether a labor provider provided labor in a subordinate relationship with an employer for the purpose of wages in a business or workplace, rather than whether a contract is an employment contract or a delegation contract. Whether a labor provider is subordinate relationship should be determined by determining the content of work, and whether an employer is subject to rules of employment or service regulations, and an employer is subject to considerable direction and supervision during the performance of work, and whether an employer is subject to such designation, whether an employer is subject to work hours and a place of work, and a labor provider is subject to such restriction, whether an employer is able to operate his/her business on his/her own account, such as holding equipment, raw materials, or tools of work, or having a third party perform duties on his/her behalf, or whether the risks such as the creation of profit and loss through the provision of work, whether the nature of remuneration is the subject of work, basic wage or fixed wage, and whether or not the continuity and degree of the provision of work, and whether the social security system is recognized as an employee.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed. (1) The Plaintiffs concluded a contract with the Defendant to perform the duty of collecting claims with a period of six months, and performed the duty of collecting claims. The Plaintiffs were employed as the Defendant’s debt collection source from February 1, 2007 to February 28, 2010, Plaintiff B from February 1, 2006 to August 31, 201, and Plaintiff C from December 1, 2005 to January 31, 201.

(2) Although there is a provision that the Plaintiffs are not in a labor contract relationship under the Labor Standards Act and other labor-related Acts and subordinate statutes, the agreement may be extended upon the termination of the six-month contract period. The Plaintiffs may terminate the contract in a case where the Plaintiffs are concurrently engaged for profit-making purposes and are deemed to have frusts in performing their duties or are considerably lacking in delegated duties. (3) The Plaintiffs were affiliated with the strike and team designated by the Defendant and collected the claims allocated by the Defendant.

(4) The Plaintiffs were provided with a computer and other office units free of charge at the Defendant’s office and accessed the ID and passwords of each individual registered in the bond management system prepared by the Defendant, and performed the overall duties, such as collecting information from the obligor, sending letters to the obligor, sending notices, and inputting the collection activity of the obligor according to the prescribed program, and perused the Defendant’s regular employees and the chief of a strike, etc.

(5) In the event that the Plaintiffs visit the debtor’s residence, etc., the Defendant entered the time, results, and expenses of all visits to the claim management system in accordance with the Defendant’s instruction, and was publicly notified that the Defendant would be at a disadvantage without thoroughly complying with such matters. (6) The Defendant provided the Plaintiffs with postal delivery expenses and transportation expenses in accordance with certain standards. (7) If necessary, the Defendant provided the Plaintiffs with self-education, and received a written confirmation for participation in education from the Plaintiffs.

(8) The Plaintiffs obtained the approval of their superior officers after registering the monthly business target amount in the credit management system as telephone communications, visit, legal measures, deposit commitments, etc. (9) The Defendant paid differential incentives to the amount collected in excess of a certain amount of money for a certain period to improve the performance of the debt collection center, and carried out a campaign to deduct fees if the amount collected is less than a certain amount. The Plaintiff B was subject to the participation of the above campaigner.

(10) After setting the target amount for each strike, the Defendant made a public notice to the debt collector who failed to achieve the determined performance results, such as moving to a new team, recovering already distributed claims, etc., or having different rates in the distribution of new claims according to the performance order. The Plaintiff A and B were affiliated with the strike where the above public notice was given.

(11) The Defendant, based on the rate of achievement of the target amount of each debt collection source belonging to each team each month, prepared a collection performance table, and the Plaintiff A was circulated at the time of his activities in the claim management team. (12) The Plaintiffs had to work up to 09:0, and at the time, were urged to work for early departure, Saturday, and night work to improve the performance, and was notified that there may be disadvantages in the distribution of claims, etc. if he did not attend the list.

(13) The Plaintiffs received fees from the Defendant around the 21st day of each month, and the amount changed according to the debt collection performance.

(14) The Defendant withheld the above service income tax, which is not the earned income tax, from the above service fee, and did not report the purchase of health insurance, national pension, employment insurance, and industrial accident compensation insurance for the Plaintiffs or pay the insurance premium, and did not establish the rules of employment or regulations that limit claims collection sources, including the Plaintiffs.

3. Whether a person constitutes a worker in an individual case disputing the worker status of the claims collection agency, such as the plaintiffs, must vary depending on the specific facts and degree of proof, such as the type of business, at the branch and branch offices of the claims collection agency to which he/she belongs. As a result of fact-finding trial, the claims collection agency did not have a duty to work every day at the claims collection agency, and is under command and supervision over the claims collection agency during the period in which contractual relationship with the claims collection agency was maintained, and it is difficult to recognize the worker status, such as receiving too small amount of performance fees, or the party who is responsible for proving the worker status of the claims collection agency submitted as evidence only the precedents, etc. regarding the claims collection agency of other company during the lawsuit, but fails to submit all specific evidence to prove the worker status in the case (see Supreme Court Decision 209Da55400, May 5,

14. Supreme Court Decision 2009Da6998 Decided September 10, 2015, Supreme Court Decision 2013Da40612 (principal lawsuit), 2013Da40629 (Counterclaim) Decided September 10, 2015)

However, in the case of the plaintiffs, although they were employed for a fixed period of six months, they were employed as debt collectors for three to five years through repeated renewal contracts or extension of the period of contract. In addition, in the course of performing their duties, the defendant was bound to take various measures to request participation in the improvement of the performance of duties, such as campaigns, early withdrawals, nights, nights, and Saturdays, in order to avoid disadvantages, such as reduction of fees, transfer from the defendant to another team, recovery of claims already allocated, reduction of claims to be newly allocated, etc. In addition, in order to prevent disadvantages, such as reduction of claims, etc., in the course of performing their duties, the remuneration received by the plaintiffs is paid in the form of piece rate without basic pay or fixed pay, but it is difficult to view that it is merely based on the nature of claims collection business, and it is difficult to view that the payment has the nature of wages as consideration for the amount and quality of work provided by the plaintiffs. Furthermore, the defendant is sufficient to have directed and supervised the plaintiffs' duties in detail by entering all process from the goal to debt collection management system to the performance of duties.

Therefore, although the form of contract between the plaintiffs and the defendant is the same as the delegation contract, it is reasonable to view that the substance is the labor contract that provides the defendant with labor in subordinate relationship for the purpose of wage. Therefore, the plaintiffs are workers subject to the application of the Labor Standards Act.

Nevertheless, the lower court rejected the Plaintiffs’ assertion on the grounds that there is insufficient evidence to acknowledge that the Plaintiffs provided labor to the Defendant solely in a subordinate position. In so doing, the lower court erred by misapprehending the legal doctrine on the criteria for determining the employee status under the Labor Standards Act, or by failing to exhaust all necessary deliberations, or by erroneously assessing the fact. The allegation contained in the

4. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin

Chief Justice Park Poe-dae

Justices Park Young-young

Justices Kim Jong-il