(영문) 부산지방법원 2019.11.21. 선고 2019구합492 판결

A. B operates â€˜E of labor law firm' for the purpose of legal service in â€˜C and D' (hereinafter referred to as â€˜the workplace of this case') in common.

B. On August 10, 2018, the Plaintiff filed an application for recognition of eligibility for employment insurance with the Defendant on the ground that “from January 26, 2017 to July 31, 2018, the Plaintiff served in the instant workplace and retired from employment as a recommendation officer”.

C. On August 10, 2018, the Defendant confirmed the fact that the Plaintiff is the representative B’s spouse, and requested on August 10, 2018 to verify the Plaintiff’s insured status (employee status) to the branch office of Korea Labor Welfare Corporation.

D. On October 25, 2018, the Korea Workers’ Compensation and Welfare Service rendered a reply that the Defendant did not recognize the insured status because the Plaintiff was not an employee under the Labor Standards Act.

E. On October 26, 2018, the Defendant rendered a disposition of non-recognition of eligibility for employment insurance benefits on the ground that the Plaintiff is not an employee under the Labor Standards Act (hereinafter “instant disposition”).

F. On February 11, 2019, the Plaintiff dissatisfied with the instant disposition filed a request for examination with an employment insurance examiner on November 2, 2018, but the said request for examination was dismissed on February 11, 2019.

G. On March 8, 2019, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee, but the said request for reexamination was dismissed on April 30, 2019.

[Ground of recognition] Facts without dispute, Gap 4, 5 evidence, Eul 1 to 4 evidence (including evidence with serial numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff’s eligibility for employment insurance is recognized as a worker under the Labor Standards Act, since the Plaintiff was under the direction and supervision of representative B at the instant workplace, and performed administrative and extra affairs, the instant disposition based on the premise that the Plaintiff’s worker status is not recognized should be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

A) On January 26, 2017, the instant place of business is a labor law firm located in Dong-gu, Chungcheongnam-do, and subscribed to employment insurance on January 26, 2017, and its representative is the Plaintiff’s husband and the Plaintiff’s labor attorney B

B) On January 26, 2017, the Plaintiff entered into a labor contract with B, and the main contents are as follows.

1. Standard employment contract period: From January 26, 2017 to February 2: The details of the services specified in C, D-3, Gyeongnam-si: Administrative affairs, extra-regular services, and business trip 4: From 09:0 to 18:00 (regular hours: 12:0-13:00 to 18:00 for working hours on a day-time basis) five days a week (or a day-time day-day day-day day-day day-day day-day day-day-day-day-day: each week-day holiday, 2,425,810- Bonuses: 100,00 for any other benefits (or allowance, etc.), and 2,425,810: 30,000 for any other benefits (or allowances, etc.);

C) According to the wage ledger in 2018, a person who acquired employment insurance in the instant workplace is a total of two persons, and the Plaintiff (from January 26, 2017 to July 31, 2018) and F (from January 26, 2017 to June 31, 2018) currently in office, the Plaintiff is deemed to have received benefits of KRW 2,625,810 (from January 2018 to March 2018) each month, and KRW 3,198,440 each month from April 2018 to July 2018.

E) The Plaintiff’s domicile is divided into Busan, Busan, Daegu, G, and H, and the Plaintiff was living together with the business owner B at the address of the said Busan, i, and J.

F) When the Plaintiff goes to work in the middle of 09:0 to 10:00, when he goes to work in Busan, the Plaintiff worked in the middle of 10:0 to 11:00, when he goes to work in Busan, and when he goes to work in the middle of 16:00, he left the work freely, and he did not work in the instant workplace every day.

G) According to the details of the passbook transaction, it is confirmed that the Plaintiff and B located in Tong-si are paying various management expenses, such as the accommodation rent, electricity, gas, and water supply, at the instant workplace.

[Ground of recognition] Relevant facts, Gap 3, 4, 5, Eul evidence 6, the purport of the whole pleadings, and related legal principles

The term "insured" under the Employment Insurance Act is an employee who is insured or deemed to have been insured pursuant to the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter referred to as the "Employment Insurance Act"), and "worker" under the Employment Insurance Act means an employee under the Labor Standards Act (Article 2 subparagraph 1 (a) of the Employment Insurance Act), and therefore, in order for the plaintiff to be eligible for benefits under the Employment Insurance Act as the insured under the Employment Insurance Act, it should constitute an employee under the Labor Standards Act.

Meanwhile, in determining whether a worker is a worker under the Labor Standards Act, regardless of whether the contract form is an employment contract under the Civil Act or a contract for work, it shall be determined in substance by whether the worker provided work in a subordinate relationship with the employer for the purpose of wages at the business or workplace. In determining whether the above subordinate relationship exists, the determination of whether the contents of work are determined by the employer and are subject to the rules of employment or service regulations, etc., whether the employer is specifically directed and supervised by the employer, whether the work hours and place are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker has the characteristic of work, whether the characteristic of remuneration is the object of work itself, whether the basic salary or fixed wage is determined, whether the continuousness and degree of the employment relationship is exclusive to the employer, whether the status of the worker is recognized by other Acts and subordinate statutes regarding social security system, and the economic and social conditions of both parties should be comprehensively considered (see, e.g., Supreme Court Decision 194Da2894, Apr. 28, 19994).

3) Whether the Plaintiff constitutes a worker under the Labor Standards Act

In light of the above legal principles by comprehensively taking account of the following circumstances acknowledged as above, the facts acknowledged as above, Eul evidence No. 5, and the purport of the entire argument, the plaintiff cannot be deemed as having provided labor to the business owner B and received wages in subordinate relationship with the purpose of wage at the workplace of this case. Thus, the plaintiff cannot be deemed as an employee under the Labor Standards Act, which is subject to employment insurance benefits.

① According to the Ministry of Employment and Labor’s guidelines for determining workers’ gender, such as the relatives living together in one workplace and the general workers, it is difficult to grasp the actual working conditions of the employer’s spouse, lineal ascendants and descendants, and their spouses, who are living together with the employer, as a matter of principle, in a case where they are engaged in a business by using them as the relatives living together in the same workplace. However, if they claim that they are workers, the burden of proof is given to the employer and the materials necessary for verifying the employment relations should be submitted to determine

② The Plaintiff did not provide labor every day at the working hours and places other than the instant place of business, but rather the business owner sent documents to a place other than the instant place of business. The Plaintiff appears to have freely sent documents to the employer during the prescribed working hours, such as going out and going out according to those days. There were no specific tasks to be done regularly and repeatedly unless they occur. Thus, the Plaintiff cannot be recognized as a subordinate relationship, such as the Plaintiff’s considerable direction and supervision during the performance of duties, or the Plaintiff’s designation of working hours and place and the Plaintiff’s receipt of detention.

③ According to the Plaintiff’s assertion, the Plaintiff was recommended to the Plaintiff on July 31, 2018 on the ground that the business owner had been in the position of recommending the Plaintiff on the ground that the Plaintiff had been paid the increased amount of KRW 500,000 from April 31, 2018 to other workers F, it is difficult to view that the said remuneration that the Plaintiff received from the business owner is in the nature of the labor itself.

④ The Plaintiff was paying the rent, management fee, etc. of the said accommodation in the workplace of this case, not only while living together with the business owner, who is the husband, at the accommodation located in K, but also paying the said accommodation in the workplace of this case. According to this, the Plaintiff cannot be deemed to have worked in the workplace of this case in the form of a general worker who provides labor in subordinate relations with the business owner.

4) Therefore, the Plaintiff’s assertion on this cannot be accepted.

3. Conclusion

Therefore, the instant disposition is lawful, and thus, the Plaintiff’s claim is dismissed as it is without merit. It is so decided as per Disposition.