[1] Criteria for determining whether the former Industrial Accident Compensation Insurance Act is a "worker" under the Labor Standards Act

[2] In a case where a freight forwarder who entered into a "truck driving service contract" with a trucking company died of a driver's negligence while driving a bitr provided by the above company and performing transportation duties, and the deceased's spouse claimed for survivors' benefits and funeral expenses, but the Korea Workers' Compensation and Welfare Service rejected on the ground that the deceased's spouse is not a worker but a business owner, the case holding that the deceased constitutes a worker who provided labor to the transportation company for the purpose of wages

[1] Whether the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373 of Apr. 11, 2007) constitutes a worker under the Labor Standards Act, which is subject to protection, should be determined depending on whether the form of a contract is an employment contract or a subordinate relationship with an employer for the purpose of wages in a business or workplace. Whether a dependent relationship exists as mentioned above should be determined by the employer’s contents of work, and whether the employer has considerable direction and supervision in the process of performing work under the rules of employment or service (personal). Whether the employer is designated as working hours and place, and whether the employer is bound by the employer’s designation of work hours and place, and whether the employer is allowed to operate his/her business on his/her own account, such as purchasing equipment, raw materials, working tools, etc., or having a third party employ and act on behalf of the employer, and whether the employer has a superior economic position, such as the nature of remuneration, whether the basic wage or fixed wage was determined by withholding taxes, and whether the employer has an economic and social status as an employee.

[2] The case holding that in a case where a transport engineer who entered into a "truck driving service contract" with a company operating a freight transport business and a "truck driver" died of a driver's negligence while driving a biter provided by the above company, and the deceased's spouse claimed for survivors' benefits and funeral expenses, but the Korea Workers' Compensation and Welfare Service refused payment on the ground that the deceased's employee is not the deceased's employee, the above company designated specific work contents and determined the contents of the transport engineer's work in the manner of requesting the deceased to submit the operation report, etc., and controlled and supervised the transport engineer's work in the course of performing the work; the freight vehicle used for the transport business is owned by the above company; most of the expenses incidental to the operation of the company are actually borne by the above company; the possibility of providing labor to the third party's agency and the transport engineer's other businesses; although the monthly remuneration paid by the deceased is not the basic pay or fixed wage, it can not be viewed that this piece of bonus amount can not be viewed as the wage nature, which is remuneration for work.

[1] Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373, Apr. 11, 2007); Article 2 (1) 1 of the Labor Standards Act / [2] Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373, Apr. 11, 2007); Article 2 (1) 1 of the Labor Standards Act

[1] Supreme Court Decision 2003Du9336 Decided November 28, 2003, Supreme Court Decision 2004Da29736 Decided December 7, 2006, Supreme Court Decision 2005Du8436 Decided January 25, 2007, Supreme Court Decision 2005Du13018, 13025 Decided March 29, 2007 (Gong2007Sang, 627)

Plaintiff (Attorney Kim Chang-jin, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Seoul High Court Decision 2006Nu23021 decided April 18, 2007

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Article 1 of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373 of Apr. 11, 2007; hereinafter “former Industrial Accident Compensation Insurance Act”) provides that “The purpose of this Act is to compensate for occupational accidents of workers by running the industrial accident compensation insurance business in a prompt and fair manner, to establish and operate insurance facilities necessary for the promotion of rehabilitation of workers suffering from occupational accidents and their return to society, and to contribute to the protection of workers by carrying out accident prevention and other projects for the promotion of workers’ welfare,” and the main text of Article 4 subparagraph 2 of the same Act provides for the definition of terms used in this Act “worker refers to a worker under the Labor Standards Act.”

Furthermore, whether the former Industrial Accident Compensation Insurance Act is a worker under the Labor Standards Act, which is the subject of protection, should be determined depending on 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 wages. Whether a dependent relationship as mentioned above exists is determined by the employer’s contents of work, and shall be subject to the rules of employment or employment, and the employer’s considerable direction and supervision during the performance of work, whether the employer is subject to the employer’s designation of working hours and working place, whether the worker is subject to detention, whether the employer is able to operate his/her business on his/her own account, such as the purchase of equipment, raw materials, working tools, etc., and the occurrence of losses through the provision of labor, and whether the nature of remuneration is determined by the basic wage or fixed wage, whether the provision of labor relations and the degree of exclusive employment to the employer, and whether the employer has a superior status with the social security system or status recognized as an employee, etc., should be determined voluntarily by taking account of the economic and social status as an employee.

2. Review of the reasoning of the lower judgment and the first instance judgment cited by the lower judgment and the record reveals the following facts.

A. Nonparty 1 Co., Ltd. owns approximately 800 ready-mixed vehicles and approximately 200 dump trucks, including rolling stock vehicles, and entered into a transport operator (including a land owner) who owns a cargo vehicle, such as ready-mixed vehicle, or a transport engineer who carries out freight transport services with a vehicle owned by Nonparty 1 Co., Ltd., which was provided by Nonparty 1 due to Non-Party 1’s failure to own it, and entered into a transportation service contract with a truck driver who carries out freight transport services, etc. according to the contract.

B. Of the contract entered into by Nonparty 1 Company, it was concluded with Nonparty 1 Company to carry out the transportation of ready-mixed raw materials, etc. with freight vehicles without compensation, such as the case of the deceased Nonparty 2 (hereinafter “the network”). As to the 35 freight vehicles.

C. The main contents of the contract made by the deceased with the non-party 1 corporation shall be as follows: ① provide the deceased 9 ○○○○○○, Chungcheongnamnam 94, △△△△△△△△, the deceased shall directly drive the above vehicle and shall not interfere with the performance of the above contract by carrying out transportation of ready-mixed raw materials at the site designated by the non-party 1 corporation; and shall compensate the deceased 1 corporation for the amount of damages if the deceased interfered with the process in violation of the work requirements of the non-party 1 corporation; ② The non-party 1 corporation shall calculate the amount calculated by multiplying the transport volume of the service unit price agreed for each transport section by the quantity of transportation to the deceased, and ③ The most expenses incurred in performing the above contract shall be borne by the non-party 1 corporation, and the case where the contract was concluded with the deceased and the non-party 1 corporation could not interfere with the deceased's act of transportation or performance of the contract, and the case where the contract was concluded with the non-party 1 corporation or the non-party 1 corporation could not perform the contract charges.

D. The Deceased driven a cargo vehicle owned by Nonparty 1 Company, which was provided by Nonparty 1 Company pursuant to the above contract, and engaged in the transportation of ready-mixed raw materials. Nonparty 1 Company bears most of the costs associated with the operation of the said vehicle.

E. On July 30, 2003, the deceased entered into the above contract with the non-party 1 corporation and continued to carry out the transportation business of ready-mixed raw materials, etc. from around July 30, 2003 to May 3, 2005, by entering into a new contract or automatic renewal upon the expiration of the one-year contract period. The deceased was paid monthly the contract amount of KRW 1.2 million from the non-party 1 corporation: Provided, That in winter, the contract amount of KRW 1.2 million per month was paid monthly from the non-party 1 corporation.

F. Nonparty 1, including the Deceased, concluded the said contract with Nonparty 1 Company, and did not designate the time of departure or withdrawal of the driver in charge of transportation of ready-mixed raw materials (hereinafter “transport engineer for convenience”) using cargo vehicles owned by Nonparty 1 Company. However, Nonparty 1 Company specifically instructed the transport engineer to the date, place, destination, and arrival time of transportation of ready-mixed raw materials, etc., and the transport engineer returned to Nonparty 1 Company for injection of oil upon completion of the transport service ordered, and then reported the situation of the performance of duties in the form of submitting the first day to Nonparty 1 Company each day, stating the distance, oil, customer, etc. divided from Nonparty 1 Company and divided it into the vehicle and the lower day. In other words, in the case of the transport engineer, the volume of transportation was determined by the vehicle operated by Nonparty 1 Company, and the transport engineer forced the transport service to be carried out in addition to this assigned ready-mixed raw materials transport service.

G. According to the above contract, a transport engineer, including the Deceased, provides that, upon the permission of the non-party 1 corporation, an assistant driver may be employed under his/her own responsibility, but in fact, the non-party 1 corporation could not employ an assistant driver. In addition, the transport engineer could not enter into a contract, etc. on transportation business, such as ready-mixed raw materials, with another company, other than the non-party 1 corporation, and it was impossible for the non-party 1 corporation to enter into a transaction with other business operators, such as not being able to

3. In light of the aforementioned facts in light of the legal principles as seen earlier, it is reasonable to view that the deceased’s monthly remuneration is an employee who provides labor to the non-party 1 corporation in a subordinate relationship with the deceased’s wage purpose by designating the details of the services to be performed by the deceased and requiring them to submit an operation report, etc. The fact that the transportation vehicle is owned by the non-party 1 corporation and most of the expenses incurred in the operation of the transportation vehicle are borne by the non-party 1 corporation. In fact, the possibility of providing labor to the non-party 1 corporation is limited to the third party’s vicarious performance of services and transportation engineer’s other places of business. Although the monthly remuneration paid by the deceased is not the basic wage or fixed wage, it can be deemed that the nature of the wage, which is the cost of the work, is not always denied, and thus, it is not always appropriate to deem that the deceased’s wage constitutes an employee who provides labor to the non-party 1 corporation without entering into a labor contract between the non-party 1 corporation and the non-party 1 corporation’s employer’s name and business manager’s name.

Therefore, the court below's determination that the deceased is not an employee under the Labor Standards Act, based on the circumstances stated in its reasoning, is erroneous in the misapprehension of legal principles as to the worker's concept, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out

4. Therefore, 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 Shin Young-chul (Presiding Justice)