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The judgment below
The part against the defendant is reversed, and this part of the case is remanded to the Panel Division of the Seoul Southern District Court.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed) and the grounds of incidental appeal.
1. As to the ground of incidental appeal by the Plaintiff
A. Determination of whether a person constitutes a worker under the Labor Standards Act as to the primary claim ought to be based on whether a labor provider provided labor to an employer for the purpose of wages in substance rather than whether a contract is an employment contract or a contract for work.
In this context, whether a dependent relationship exists or not shall be determined by comprehensively taking into account the following economic and social conditions: (a) whether an employer determines the details of business and is subject to the rules of employment or service regulations; (b) whether an employer is subject to considerable direction and supervision by an employer during the performance of duties; (c) whether an employer is bound by the employer; (d) whether an employer is capable of operating his/her business on his/her own account; (e) whether a labor provider voluntarily owns equipment, raw materials, working tools, etc.; (e) whether he/she has a risk, such as creation of profit and loss by providing labor; (e) whether the nature of remuneration is the subject of the labor; (e) whether the basic salary or fixed wage has been determined; and (e) whether the wage has been withheld from the wage and salary income tax; and (e) whether the continuity
(See Supreme Court Decision 2004Da29736 Decided December 7, 2006, etc.). In full view of the evidence adopted in the relevant judgment, the lower court determined as follows: (a) on August 3, 2011, the Plaintiff and the Defendant engage in the business for the owner of the Defendant’s construction works; and (b) monthly support expenses of KRW 5,00,000 from August 1, 201 to July 31, 2012, and the Plaintiff’s business support expenses.