[1] Criteria for determining whether an officer such as a director of a company constitutes a worker under the Labor Standards Act

[2] The case affirming the judgment of the court below which held that the person who was appointed as executive director and worked as the chief of the headquarters or local chief of the headquarters is a worker under the Labor Standards Act who provides labor to the employer for the purpose of wages in the business or workplace

[1] In determining whether a worker is a worker under the Labor Standards Act, regardless of whether a contract is an employment contract under the Civil Act or a contract for work, and whether a worker has provided 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 shall take into comprehensive account the following factors: (a) whether the contents of work are determined by an employer; (b) whether the employer is subject to rules of employment, service regulations, personnel regulations, etc.; (c) whether the worker is specifically and directly directed and supervised by the employer; (d) whether the time and place of work are designated by the employer; (e) whether the worker is a substitute for the work; (e) whether the worker has a characteristic of work by employing a third party; (e) whether the remuneration has a basic wage or fixed wage; (e) whether the wage has a continuity and degree of exclusive employment relationship; and (e) whether the status of an employee is recognized by any other social security system, not the economic and social standards of the company.

[2] The case affirming the judgment of the court below that the person who was appointed as executive director and worked as the chief of the headquarters or local chief of the headquarters is a worker under the Labor Standards Act who provides labor to the employer for the purpose of wages in the business or workplace

[1] Articles 14 and 17 of the Labor Standards Act / [2] Articles 14 and 17 of the Labor Standards Act

[1] Supreme Court Decision 94Da22859 delivered on May 12, 1992 (Gong1992, 1894), Supreme Court Decision 97Da44393 delivered on December 23, 1997 (Gong1995Sang, 448), Supreme Court Decision 2000Da22591 delivered on September 8, 200 (Gong2000Ha, 2096), Supreme Court Decision 200Da57498 delivered on February 9, 200 (Gong201Sang, 625 delivered on June 26, 2001), Supreme Court Decision 200Da36481 delivered on June 26, 200 (Gong2001Sang, 625 delivered on June 26, 2001)

Han Investment Trust Securities Co., Ltd. (Law Firm Sejong, Attorneys Lee Ho-ro et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant

Seoul High Court Decision 2004Nu3122 delivered on December 10, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Judgment on the first ground for appeal

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 a worker provides work 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. Determination of whether a dependent relationship here exists shall be made based on whether the contents of work are determined by an employer and are subject to employment rules, service regulations, personnel regulations, etc., specific and direct command and supervision from the employer in the process of work performance, whether the worker is designated time and place of work by the employer, whether the worker is subject to replacement of work, whether the worker has a basic pay or fixed wage, whether the worker has a wage is subject to the worker's own work, whether the wage has a withholding nature, etc. of wage and salary income tax, whether the employer has continued to provide labor and whether the worker has exclusive status as an employee under other Acts and subordinate statutes, and whether the worker has economic, social, and social conditions, etc. (see, e.g., Supreme Court Decision 2001Do2981.).

The court below acknowledged the facts as stated in its reasoning as to whether the intervenor's intervenor who was appointed as the chief executive officer or the chief director of the headquarters of the company's board of directors and worked as the chief executive officer or the chief of the regional headquarters of the company (hereinafter referred to as the "participating") is an employee under the Labor Standards Act. Unlike the director registered in the corporate register, the contents of the intervenor's work are determined by the regulations of the company, such as the regulations on the management of the company and the organization regulations, and disciplinary actions are also applied to the intervenor's wages and retirement allowances, and the executive director is not an employee under the regulations on the management of the company. According to the facts established by the court below, the chief of the headquarters, the chief of the regional headquarters, and the chief of the local headquarters, after the intervenor was appointed as the executive director, shall be appointed from among the officers of the company's representative director's office or the chief of the local headquarters's office's employees, and the intervenor is subject to the direction and supervision of the representative director's office's employees, as well as the representative director's right to command and supervision of the plaintiff's employees.

2. Judgment on the second ground for appeal

In light of the records, the court below is just in holding that the dismissal of this case resulting in the result of dismissal of the intervenor was improper on the ground that the intervenor's act in the judgment of the intervenor did not interfere with the trust relationship between the plaintiff company and the intervenor, and it is difficult to deem that the intervenor's act did not reach the extent that it could no longer continue the employment relationship by social norms. There is no error in the misapprehension of legal principles as to the legitimacy of dismissal or in incomplete deliberation.

3. Conclusion

Therefore, the appeal is 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.

Justices Yang Sung-tae (Presiding Justice)