(영문) 광주지방법원 2015.8.13. 선고 2015구합431 판결

A. On April 10, 2013, the Plaintiff filed an application for recognition of eligibility for unemployment benefits with the Commissioner of the Busan Regional Employment and Labor Office on the ground that “from April 1990 to June 201, the Korea Container Terminal Corporation located in Mineyang-si; from July 201 to October 2013, the Plaintiff worked for each of the Korea Container Terminal Corporation located in Mineyang-si B (hereinafter “C”); and from July 2011 to October 2013, the Plaintiff was retired from employment due to the expiration of the employment contract; and on November 6, 2013, the Administrator of the Busan Regional Employment and Labor Office recognized the eligibility for unemployment benefits with respect to the Plaintiff.

B. On November 19, 2013, the head of Busan Regional Employment Agency requested the Defendant to verify the insured status (employee status) of the Plaintiff, and the Defendant, as a result of the review, determined that the Plaintiff, as a registered director C, was jointly invested with D as a representative director C, and was not a worker recognized as insured status as a joint participation in D and the company’s management by exercising representative rights and duties. On December 6, 2013, the head of Busan Regional Employment Agency issued a disposition to delete the records of the Plaintiff’s acquisition or loss of insured status (e.g., acquisition on August 19, 201, loss on October 15, 2013) against the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff, dissatisfied with the instant disposition, filed a request for review with an employment insurance examiner, but dismissed on March 27, 2014, and accordingly, filed a request for review with the Employment Insurance Review Committee, but was dismissed on January 27, 2015.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

The Plaintiff did not participate in the management of the Company under the direction and supervision of D, the representative director, while receiving a certain amount of monthly wage during the period of service in C and regularly attending the company. Therefore, even if the Plaintiff is a worker under the Labor Standards Act and is recognized as insured status under the Employment Insurance Act, the Defendant’s disposition of this case made on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. Relevant legal principles

The term "insured" under the Employment Insurance Act means an employee who is either insured or deemed to have been insured under the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter "Insurance Premium Collection Act"), and the term "employee" under the Labor Standards Act means an employee under the Labor Standards Act (Article 2 subparagraph 1). Thus, in order for the Plaintiff to be eligible for benefits under the Employment Insurance Act as an insured person of the employment insurance, it must be determined by whether the Plaintiff provided labor in a subordinate relationship with the employer for the purpose of wages of the business or workplace, rather than being provided with the form of contract. Determination of whether an employee is a worker under the Labor Standards Act should be made based on whether the employer provided labor in a subordinate relationship with the employer, such as employment rules or service regulations, and whether the employer is subject to considerable direction and supervision in the course of performing duties, whether the employee is bound by the employer, whether the employer voluntarily owns equipment, raw materials, or equipment, or a third party, and whether the employer has an economic and social status such as the provision of remuneration and remuneration for his/her own account.

On the other hand, since directors, auditors, etc. of a corporation are delegated with certain business affairs by the company, they cannot be viewed as workers under the Labor Standards Act, barring any circumstances such as providing certain labor under the direction and supervision of the employer and receiving certain wages. Thus, their status or title is formal and nominal, and in fact, providing a certain labor under the direction and supervision of the representative director or the employer who has the right to work daily and has the right to work daily, and receiving remuneration in return for the provision of labor, or performing the business affairs delegated by the company, and receiving certain remuneration in return for the provision of labor (see, e.g., Supreme Court Decisions 200Da61312, Feb. 23, 2001; 2002Da64681, Sept. 26, 2003).

B. Determination

In light of the above legal principles, comprehensively taking account of the following circumstances acknowledged as a whole by comprehensively considering the evidence and evidence set forth in subparagraphs 1 through 14 as seen earlier, it is difficult to deem that the Plaintiff, as a registration officer of C, had a relation of being entrusted with certain business affairs by the company. It is difficult to deem that the Plaintiff had a relation of being entrusted with certain business affairs by the company. Accordingly, the instant disposition is lawful, and the Plaintiff’s assertion on a different premise is without merit.

1) On July 25, 2011, C was established for the purpose of maintaining and managing a building. The Plaintiff and the Plaintiff’s spouse E were appointed as a registration director at the time of establishment, but resigned on October 23, 2013. 2) The F, who served as a director in C, was prepared and submitted to the Defendant on November 2013, 2013, and the Plaintiff was appointed as a registration officer on the date of establishment of the company as the promoters before the establishment of C. The Plaintiff was jointly made an investment as the registration officer on the date of establishment of the company, and the Plaintiff was employed as a registration officer by establishing the company as the registration officer on the date of establishment of the company. The Plaintiff’s official seal (revenue, expenditure, corporate seal) and all documents were administered by the Plaintiff, and D’s representative director was in charge of extra-party affairs, such as future services, and when it is impossible for the Plaintiff to perform his duties.

3) On February 2014, D, the representative director of C, invested KRW 100 million in the public official in charge of the Defendant, and invested KRW 150 million in the principal as a managing director, and the Plaintiff promised to take charge of all administrative affairs, such as business place, personnel affairs, labor affairs, etc. as a managing director, and the principal promised to take charge of external affairs as the president, and the approval of the internal administrative affairs was replaced by post-decision, and the actual leading authority was possessed by the managing director.

4) Around February 2014, G, who had worked as a public official in charge of the Defendant in C, managed the passbook, map, etc. of the Plaintiff, and managed the relevant work-related documents. The president had been drank by the Plaintiff when the Plaintiff was out of work. The president submitted a worker confirmation document stating that he had been dynasium as the thickness with the president, and that he was dynasium, and that C had been dynasium worked as a public official in charge of the Defendant around February 2014, 2014, submitted a worker confirmation document stating that “A public official in charge of the Defendant knew that he had been dynasium as the Plaintiff and D’s representative was dynasium for the operation of the company.”

5) On October 11, 2013, the Plaintiff and D entered into an agreement with D, subject to the transfer of E’s equity (49% and I’s equity 2%) to the representative D, that KRW 75 million in cash shall be paid to the Plaintiff on October 11, 2013. The remainder of KRW 65 million shall be paid as down payment, and the remainder of KRW 65 million shall be paid by October 22, 2013. Of the Plaintiff’s investment, the remainder of the amount of KRW 25 million shall be taken over as a business vehicle. In accordance with the foregoing agreement, the Plaintiff transferred the said E’s equity to D, and on October 23, 2013, the Plaintiff received KRW 75 million from the foreign exchange bank in the Plaintiff’s name to the Plaintiff’s foreign exchange bank, and transferred the Plaintiff’s vehicle from C on October 23, 2013 to C on the same date as the Plaintiff’s director’s on the register.

6) According to the minutes of the board of directors’ meeting (No. 12) dated July 25, 2011, the Plaintiff, as a internal director of C, attended the board of directors and appointed D as the representative director of C.

7) In light of the Plaintiff’s status in C and the type of business, etc. known by the above circumstances, the status or name of the Plaintiff’s managing director was a formal and scenic purpose.

It can not be seen as being the case.

8) At C, the Plaintiff withheld the Plaintiff’s labor income tax, and the Plaintiff was subscribed to four major insurance (national pension, health insurance, employment insurance, and industrial accident insurance), but C submitted a request for the rectification of insured status with employment insurance, stating that “A Plaintiff was subscribed to the four major insurance around November 2013 by filing an application with the Defendant for a correction of insured status with no separate thought of business concern concerning the Defendant’s four major insurance.”

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.