The case holding that, in case where a disabled person who has difficulties in carrying out his business independently due to mental disorder is accommodated in the workplace and performs his business according to the direction of the employer, even though the employer did not pay a fixed wage as a price for his work but paid an irregular amount according to his work performance, it shall be deemed an employee

The case holding that, in case where a disabled person who has difficulties in carrying out his business independently due to mental disorders is accommodated in the workplace and performs his business according to the direction of the employer, even though the employer was not paid a fixed wage as a price for his work, but paid an irregular amount according to his work performance, it shall be deemed an employee under

Article 2(1)1 of the Labor Standards Act, Article 5 subparag. 2 of the Industrial Accident Compensation Insurance Act

Plaintiff (Law Firm Cheongung, Attorneys Yoon-sik et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

March 20, 2008

1. On July 10, 2007, the defendant revoked the disposition of non-approval for medical care granted to the plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a person with a disability in the third degree in mental retardation, who has been engaged in the business of accommodation and collection in a company located (trade name omitted) located in 353-18, Cheongju-dong, Cheongju-dong, which was operated by the Nonparty from around 2003.

B. The Plaintiff, within the company on March 15, 2007 (trade name omitted), was engaged in the process of containing a soldier’s disease in luxa, and was hospitalized in the Cheongju Sung Hospital as of March 15, 200, while the Plaintiff was under the 11:00 string of the lap of the lap, thereby falling down on the string of the lap, and falling down on the bottom below approximately 1.4m, and then falling down on the floor below approximately 1.4m of the lap, and was hospitalized in the luxa Hospital.

C. On May 17, 2007, the Plaintiff submitted to the Defendant an application for medical care for which the employer refused to affix his/her seal on the ground that the instant injury was caused by an occupational accident. On July 10, 2007, the Defendant rendered a disposition of non-approval of the Plaintiff’s application for medical care on the ground that the Plaintiff did not constitute an employee under the employer’s direction and supervision (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, Eul evidence Nos. 1 and 3

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Since the Plaintiff does not have only intelligence with a level of 4-5 years of age as a mental retardation, it is difficult to independently conduct its business or conduct its business. Accordingly, under the control and management of the Nonparty, the Plaintiff performed the work of collecting and arranging goods in accordance with the Non-Party’s instructions, and the Non-Party paid the Plaintiff remuneration for the Plaintiff’s labor so that the amount of KRW 20,000 per annum does not fall.

Therefore, the Plaintiff constitutes an employee under the Labor Standards Act who was employed by the Nonparty, who was an employer, and provided labor for the purpose of wages under the control and supervision of the Nonparty, and thus, the Defendant’s disposition that did not recognize the Plaintiff as an employee

B. Defendant’s assertion

The non-party’s workplace is less than one full-time employee, and is not subject to the Industrial Accident Compensation Insurance Act. The plaintiff’s workplace is not a worker who was employed by the non-party for the purpose of wages and was employed by the non-party for the purpose of receiving the sales proceeds of the high-water collected by himself.

C. Relevant statutes

Industrial Accident Compensation Insurance Act

Article 5 (Definitions)

The terms used in this Act shall be defined as follows:

1. The term "occupational accident" means an injury, disease, disability or death of a worker caused by an occupational reason;

2. “worker”, “wage”, “average wage”, and “ordinary wage” mean a “worker”, “wage”, “average wage”, and “ordinary wage” respectively under the Labor Standards Act: Provided, That where it is deemed difficult to determine a “wages” or “average wage” pursuant to the Labor Standards Act, the amount determined and publicly notified by the Minister of Labor shall be the relevant “wages” or “average wage”;

Article 6 (Scope of Application)

This Act shall apply to all businesses or workplaces that employ workers (hereinafter referred to as "business"): Provided, That this Act shall not apply to business prescribed by Presidential Decree in consideration of risk rates, scale, place, etc.

Enforcement Decree of the Industrial Accident Compensation Insurance

Article 3 (Business Excluded from Application of Act)

(1) The term "projects prescribed by Presidential Decree" in the proviso to Article 5 of the Act means projects falling under any of the following subparagraphs:

(Omission) subparagraphs 1 through 4 (Omission)

5. A business other than the business referred to in subparagraphs 1 through 4, which does not work for not less than one regular worker. In this case, the method of calculating the number of regular workers shall be determined by the Ordinance of the Ministry

Article 6 (Omission)

Enforcement Regulations of the Industrial Accident Compensation Insurance Act

Article 3 (Calculation of Number of Regular Workers and Time of Application)

(1) In applying the provisions of Article 3 (1) 5 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (hereinafter referred to as the "Decree"), a business which ordinarily employs one or more workers shall be a business which is calculated by dividing the annual number of workers employed for 30 days from the date of the first employment of workers after the commencement of the business by 30 days, and then dividing by 30 the annual number of workers employed for 30 days during the operation period of the business concerned, but if the average number of workers is not less than 1, it shall be the business which is calculated by dividing by 30 the annual number of workers employed for 30 days during the operation period from the date of the first employment of the workers and

Labor Standards Act

Article 2 (Definitions)

(1) The terms used in this Act shall be defined as follows:

1. The term "worker" means a person who provides his/her labor for wages or at a business or workplace, regardless of the type of occupation;

2. The term "employer" means a business owner, a person responsible for the management of a business, or a person who acts for a business owner with respect to matters concerning workers;

3. The term "work" means both mental work and physical work;

4. The term "labor contract" means a contract which is entered into in order that a worker offers work for which the employer pays its corresponding wages;

The provisions of subparagraphs 5 through 8 (hereinafter referred to as the "informant")

(d) Markets:

The issue of this case is whether the plaintiff is a worker under the Labor Standards Act and the Industrial Accident Compensation Insurance Act.

The issue of whether a worker is a worker under the Labor Standards Act shall be determined by whether a worker has provided labor in a subordinate relationship with an employer for the purpose of wages in substance regardless of the form of the contract. In determining whether a dependent relationship exists, the contents of the work shall be determined by the employer and shall be subject to rules of employment, service regulations, personnel regulations, etc., and shall also be subject to specific and direct command and supervision from the employer in the process of performing the work, whether the employer is designated working hours and place of work, whether the worker is placed under custody, whether the worker is replaced with his/her work, such as substitution of work, such as providing equipment, raw materials, work tools, etc., whether the remuneration has the characteristic of his/her own work, whether the basic wage or fixed wage has been determined, whether the wage has the characteristic of the wage, whether the wage has the characteristic of the wage itself, whether the wage has the exclusive nature of the wage and salary income tax, whether the status of the worker has been recognized by other Acts and subordinate statutes such as the continuous provision of the labor relationship, whether the parties’ economic and social conditions, etc.

(5) If the Plaintiff had been engaged in the business on the part of the non-party for whom the business owner had no choice but to conduct its own business on the part of the non-party under his/her own direction, it shall be deemed as an employee under the Labor Standards Act even if the business owner did not pay a fixed amount for his/her work. The above facts are as follows: Gap evidence Nos. 4 through 9, Eul evidence Nos. 14 through 16, Eul evidence No. 14 and 3; the testimony of the non-party are as follows: ① The Plaintiff was unable to conduct its own business or conduct financial transactions by making it difficult for the non-party to use his/her own decision on the non-party’s own, and the Plaintiff’s average amount of money collected within the non-party’s place of business to which the non-party had no choice but to whom the non-party had no choice but to whom the non-party had no choice but to whom the non-party had no choice but to whom the non-party had collected his/her own goods, and ② the Plaintiff’s quantity of the non-party’s work collected.

E. Sub-committee

Therefore, as long as the Plaintiff is regarded as an employee, the non-party’s business ordinarily employed by the Plaintiff does not fall under the non-party’s business under the Industrial Accident Compensation Insurance Act, and the Defendant’s disposition of this case which the Plaintiff rejected the Plaintiff’s application for medical care approval on the premise that the Plaintiff is not

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

Judges Suh-ho (Presiding Judge) (Presiding Judge)