[1] Whether an employer under the former Industrial Accident Compensation Insurance Act is liable to pay insurance premium as an insured only in relation to an employee under the Labor Standards Act (affirmative)

[2] Criteria for determining whether a person constitutes a worker under the Labor Standards Act

[3] The case holding that there is no dependent relationship between the employees of the Seoul Special Metropolitan City Agricultural Products Comprehensive Market Trade Union under the Korea Port Trade Union and the National Agricultural Cooperative Federation who dispatched them for loading and unloading

[1] In full view of the relevant provisions such as Articles 3, 6, and 19 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4641 of Dec. 27, 1993), and Articles 14 and 18 of the Labor Standards Act, a business owner who has subscribed to industrial accident compensation insurance shall be liable to pay insurance premiums in relation to the workers under the Labor Standards Act, i.e., the employers, regardless of the type of occupation, for the purpose of receiving money or valuables from the employers to the employers who maintain a substantial subordinate relationship with the employer and provide them with labor.

[2] In determining whether a worker is a worker under the Labor Standards Act, the contents of the work shall be determined by the employer and shall be subject to the rules of employment or service regulations. In the process of performing the work, whether the employer is specifically directed and supervised by the employer, whether the working hours and working places are designated by the employer, whether the worker is bound by the employer, whether the worker's replacement of the work, such as providing a third party with an employment, whether the worker owns equipment, raw materials, work tools, etc., whether the characteristic of the work itself is the subject of the work, whether there is a basic salary or fixed wage, whether there is withholding tax on earned income, etc., matters concerning remuneration such as the continuation of the labor provision relationship, the existence and degree of the exclusive affiliation to the employer, whether the status of the worker is recognized in accordance with other Acts and subordinate statutes such as the Social Security System,

[3] The case holding that there is no substantial subordinate relationship between the National Agricultural Cooperative Federation and workers engaged in loading and unloading at the place of business after dispatching workers belonging to the Seoul Special Metropolitan City Agricultural Products Comprehensive Market Trade Union under the National Port Trade Union

[1] Articles 3, 6, 19, and 25 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4641 of Dec. 27, 1993); Articles 14 and 18 of the Labor Standards Act / [2] Article 14 of the Labor Standards Act / [3] Article 14 of the Labor Standards Act

[1] [3] Supreme Court Decision 94Nu9290 delivered on January 4, 1995 (Gong1995Sang, 1167) / [2] Supreme Court Decision 94Da22859 delivered on December 9, 1994 (Gong1995Sang, 448) Supreme Court Decision 94Do2122 delivered on June 30, 1995 (Gong195Ha, 2685) / [3] Supreme Court Decision 95Nu3565 delivered on December 22, 1995 (Gong196Sang, 572)

National Agricultural Cooperative Federation (Attorney Lee Chang-chul, Counsel for defendant-appellant)

Korea Labor Welfare Corporation (the head of Seoul Western Regional Labor Office before its change)

Seoul High Court Decision 94Gu23335 delivered on November 28, 1995

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the plaintiff was established for the purpose of promoting the common interest of the member cooperatives and promoting the sound development of the member cooperatives by using the unit work of the non-party 1, which is the autonomous cooperative organization of farmers according to the evidences of the court below. The plaintiff is operating the new village business place (including the high-sea warehouse, supermarket and Seodaemun-gu exhibition business place; hereinafter the same shall apply) which has been in custody of the government grain. The non-party 1 (the non-party 2) who is an employee of the National Maritime Affairs and Trade Union under the National Maritime Affairs and Fisheries Union (the non-party 3) who is in charge of the plaintiff's work at the loading and unloading station (the non-party 7)'s work site for which the non-party 2 was in charge of the above work at the loading and unloading station's own work site and the non-party 1 (the non-party 2) who was in charge of the above work at the loading and unloading station's own work site for which the plaintiff was in charge of loading and unloading.

2. A. In full view of the relevant provisions such as Articles 3, 6, 19 of the Industrial Accident Compensation Insurance Act (amended by Act No. 4641 of Dec. 27, 1993), and Articles 14 and 18 of the Labor Standards Act, a business owner who has subscribed to industrial accident compensation insurance shall be liable to pay insurance premiums in relation to the workers under the Labor Standards Act, i.e., the employers, regardless of the type of occupation, who maintain a substantial subordinate relationship with the employer with the aim of receiving money and valuables from the employers and provide them with labor (see Supreme Court Decision 94Nu9290, Jan. 4, 1995).

In addition, in determining whether a worker falls under the category of the Labor Standards Act, the contents of the work shall be determined by the employer and shall be subject to the rules of employment or service regulations. In the process of performing the work, whether the employer is specifically directed and supervised by the employer, whether the working hours and place of work are designated by the employer, whether the worker is bound by the employer, whether the worker's replacement of the work, such as the replacement of the work, the ownership of equipment, raw materials, working tools, etc., whether the characteristic of the work is the subject of the work, whether the basic salary or fixed wage is determined, whether the wage has the nature of the work itself, and other matters concerning remuneration such as whether the wage and salary tax is withheld, whether the status of the worker is recognized as the worker under other Acts and subordinate statutes, such as the continuation and degree of the employment relationship, whether the status of the worker is exclusive to the employer, and whether the economic and social conditions of the parties should be comprehensively considered (see, e.g., Supreme Court Decisions 94Da22859, Dec. 9, 1994>

B. The evidence, including the testimony of Non-Party 2, the chief of the working party, and the record, as one of the cargo unloading workers belonging to the non-party union of this case, as to whether the plaintiff and the cargo crew have a substantial subordinate relationship to the use of the cargo back to the case.

(1) The shipper of this case is a person belonging to the non-party partnership and dispatched from the non-party partnership to the instant workplace at the request of the plaintiff, and provided labor according to the amount of work at the instant workplace without concluding an individual employment contract with the plaintiff.

(2) there is no evidence to deem that the Plaintiff has personnel rights on employment, personnel movement, dismissal, and retirement for them or there is any rules of employment applicable to them;

(3) The reason why the loading and unloading workers in this case ordinarily worked at around 07:00 is not because the working time is set, but because it is difficult to predict the working quantity due to the nature of the loading and unloading work, it appears only to prepare for working hours.

(4) The specific contents of the work instruction given by the Plaintiff to the shipper of this case are to set the work subject to work and notify him of the completion of work. This is simple and repeated work that does not require detailed instructions, and the Plaintiff’s work subject to work and work contents are generally pointed out to the shipper of this case in accordance with the work management and operation plan of the relevant workplace, and the notification of the completion of work is shown to be within the scope ordinarily permissible, in light of the fact that the Plaintiff’s work instruction to the shipper of this case is within the scope of business operator who is ordinarily capable of receiving labor, and thus, it cannot be deemed that the Plaintiff specifically and individually supervised the shipper in the course of performing work.

(5) In addition, it is due to the situation that the instant stevedoring continued to work for a long period at the instant workplace, and if there is no working quantity at the instant workplace, it can be sufficiently anticipated in light of his status that the instant stevedoring worked at the workplace of another company required to perform loading and unloading work under the direction of the Nonparty Union. Thus, it cannot be deemed that the instant stevedoring’s work is subordinate to the Plaintiff Company on the ground of such continuous work.

(6) Meanwhile, in light of the fact that the Plaintiff paid the cargo rental fee and the inspection fee directly to the shipper of this case, but did not directly pay them from August 194, 194, which was after the disposition of this case, to the above non-party 2, who is the head of the working group belonging to the non-party union, and distributed them to the shipper of this case (Records 92, the above non-party 2’s statement), it cannot be readily concluded that the Plaintiff had a duty to pay the cargo rental fee, etc. to the shipper of this case. Rather, it is suspected that the Plaintiff was not acting on behalf of the plaintiff for the convenience of business affairs or for the agreement with the non-party union.

(7) The Plaintiff does not withhold Class A labor income tax, deeming that the instant stevedoring is engaged in free occupation, and that it is a worker who has withheld business income tax.

(8) In light of the fact that the office of the non-party partnership is established within the instant workplace and the above non-party 2 is in the position of the head of the Working Group, it can be deemed that the non-party partnership is giving the above non-party 2 an instruction to work other cargomen.

In full view of all the circumstances, such as the form of provision of labor and the form of payment of work expenses, it is reasonable to view that there is no substantial subordinate relationship between the Plaintiff and the cargo forwarder of this case.

C. Nevertheless, the court below held otherwise that there is a substantial subordinate relationship between the shipper and the plaintiff of this case dispatched from the non-party union, and held that the plaintiff is the business owner liable to pay the insurance premium under the Industrial Accident Compensation Insurance Act. The judgment below is erroneous in the misapprehension of legal principles as to workers under the Labor Standards Act. Thus, the ground for appeal pointing this out has merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)