2016 Confirmation of the status of workers 53374

The entries in the attached Table 1 shall be as shown in the attached Table.

[Judgment of the court below]

B Stock Company

Attorney C, D

January 14, 2019

February 21, 2019

1. The defendant expressed his intent of employment to the plaintiffs.

2. The defendant shall pay to the plaintiffs 10,00,000 won out of the corresponding amounts set forth in the separate sheet No. 2 of the attached Table No. 2 of the plaintiffs, and 6% per annum from September 2, 2016 to February 21, 2019, and 15% per annum from the next day to the day of full payment.

3. The plaintiffs' remaining claims are dismissed.

4. Ten percent of the costs of lawsuit shall be borne by the plaintiffs, and ninety percent by the defendant.

5. Paragraph 2 can be provisionally executed.

As stated in paragraph (1) of this Article, the judgment of the court below and the defendant shall enter the plaintiffs in the column of "the claim amount" in attached Table 2 of this Decree.

To each corresponding amount and each corresponding amount, full payment shall be made from the day after the date of service of a copy of the complaint of this case

By the day, 15% interest per annum must be paid.

1. Basic facts

A. The defendant is the party 1) The defendant acquires E in the business of manufacturing and selling motor vehicles and motor vehicle parts, and takes over F in the business of manufacturing and selling motor vehicles and motor vehicle parts.

8.7. A newly established juridical person. It is a company with its head office in Incheon for the purpose of designing, manufacturing, assembling, maintaining, selling and financing, supplying and providing various motor vehicle-related machinery, equipment, and their parts by having factories in Bupyeong and Changwon.

2) The Plaintiffs are workers employed in the Defendant’s creative plant located in Seongbuk-si, Sungwon-si (hereinafter “Defendant Changwon factory”).

B. The defendant's business opening officers and the plaintiffs' business 1) The defendant's automobile manufacturing process is carried out in the order of "catch ? seal ? ? assembly ? quality management ? ? ex-factory." The related processes or tasks are engine operation process, production management process, packing, etc.

2) The organization system of Defendant Changwon Factory consists of a vehicle department related to production, books, assembly, processing, quality control department, management department such as production management department, management-related management department, general affairs department, facility management department, etc. In addition, the management department is divided into several units, and each department is divided into two units, and each department is divided into two units, one production group, and each of them is a person in charge of each position. 3) On the other hand, the Plaintiffs have engaged in tasks such as tea, painting, assembly, etc. in Defendant Changwon Factory under the control of the intra-company cooperation company as shown in the attached Table 3.

C. The Defendant prepared a contract agreement between the Defendant and the intra-company subcontractor, etc. using a standardized contract form for a period not exceeding one year, and the contract form used before the so-calledRare reorganization on October 2007 had the following contents: (a) “A” refers to the Defendant, “B” refers to the intra-company subcontractor, and “B” refers to the existing contract form of this case; hereinafter referred to as “the existing contract form of this case”).

2) On October 2007, the Defendant partially revised the content of the existing contract of this case while re-consigning so-called D', which had been used at the above point, as follows: (a) “A” refers to the Defendant; and (b) “B” refers to the intra-company subcontractor; hereinafter referred to as “the contract of this case’s modification”).

D. Around 2005 investigation was conducted with respect to illegal dispatch to the defendant and the intra-company subcontractor. After that, the representative of the intra-company subcontractor at that time shall obtain permission from the Minister of Labor as prescribed by law, and even in the case of engaging in the inter-company dispatch business, it shall not be subject to the direct production process of the manufacturing business, but it shall not be subject to the worker's direct production process from December 22, 2003 to January 26, 2005, after employing the worker to the defendant Changwon Factory, so that the worker engaged in the workplace dispatch business without the permission of the Minister of Labor. At that time, the defendant representative director G was engaged in the workplace dispatch business without the permission of the Minister of Labor.

Until now, workers belonging to the in-house subcontractor were engaged in the direct production process of the Defendant Changwon Factory and received illegal temporary placement services for workers" was prosecuted for violating the Act on the Protection, etc. of Temporary Agency Workers as the charges.

The first instance court rendered a judgment of innocence on February 16, 2009 with respect to the representative of the intra-company subcontractor and G (Seoul District Court 2007 Gowon District Court 276), but the appellate court reversed the first instance judgment on December 23, 2010 and sentenced the entire Defendants including G to a judgment of conviction (Seoul District Court 2009Do579), and the appellate court dismissed the Defendants’ final appeal on February 28, 2013 (Supreme Court 201Do34, hereinafter referred to as “related criminal judgment”).

2) On June 24, 2013, five former employees, including H, were the former Act on the Protection, etc. of Streets from Dispatched Service (amended by Act No. 8076, Dec. 21, 2006; hereinafter referred to as the "former Dispatch Act"). After the amendment on December 21, 2006, the former Dispatch Act was amended by Act No. 11279, Feb. 1, 2012; and the above Act was amended by Act No. 11279, Feb. 1, 2012; and filed a lawsuit seeking confirmation of workers' status and wage payment.

On December 4, 2014, the first instance court rendered a judgment accepting the claim of workers on December 4, 2014 [the Changwon District Court 2013 Gohap3781, 4456 (Joint)], the appellate court dismissed the defendant's appeal on January 21, 2016 [the Busan High Court 2015Na130, 147 (Joint)], and the appellate court dismissed the defendant's appeal on June 10, 2016 [the Supreme Court 2016Da10254, 10261 (Joint), hereinafter referred to as "related civil judgment").

3) Meanwhile, as seen earlier, the Defendant raised a problem that it is not a contract for the employment of workers through an intra-company subcontractor but a contract for the employment of workers, and concluded the work to eliminate the elements of the temporary placement of workers by relocating the workers in the overall process of the automobile manufacturing, etc. (hereinafter “the above work”) around October 2007.

【Ground of recognition】 In the absence of dispute, Gap evidence Nos. 1 through 44 (including branch numbers), Eul evidence Nos. 1, 19 through 21, and 24, the result of the on-site inspection by this court, and the purport of the whole pleadings

2. Determination on the application for the indication of intention of employment

A. The plaintiffs' assertion

The plaintiffs concluded a contract between the company to which they belong and the defendant, and work as an employee of the in-house subcontractor in the defendant Changwon Factory, but this constitutes a worker dispatch in substance, and the defendant asserts that the defendant is obligated to directly employ the plaintiffs from the date of termination of the above two-year period pursuant to Article 6-2 (1) 4 of the Act on Dispatching the plaintiffs in case that the two-year period from the date of employment of the in-house subcontractor before August 2, 2012, exceeds the two-year period from the date of termination of the above two-year period pursuant to Article 6-2 (1) 4 of the Act on Dispatching the plaintiffs in case that the plaintiffs are employed by the in-house subcontractor after August 2, 2012, and the two-year period from the date of employment of the company partner as of August 2, 2012, pursuant to Article 6-2 (1) 5 of the current Dispatching Act.

B. Whether to recognize the temporary placement relationship for workers

1) Relevant legal principles

In a case where a plaintiff's employer allows a certain worker to perform the work for a third party, whether the legal relation constitutes a temporary placement of workers subject to the Act on the Protection, etc. of Temporary Agency Workers does not go against the name or form of a contract attached by the party, but rather, whether the third party directly or indirectly gives binding instructions to the relevant worker, such as giving a binding order to the work itself, and whether the relevant worker is actually incorporated into the third party's business, such as direct or indirect incorporation of one work group consisting of the workers belonging to the third party, etc.; whether the plaintiff's employer independently exercises the power to determine the number of workers to be placed in the work or the number of workers, education and training, work and rest time, leave, inspection of work attitude, etc.; whether the contract purpose is clearly determined as a limited scope and the work entrusted by the relevant worker is distinct from the work performed by the third party; whether such work is specialized and technical, and whether the plaintiff's employer has an independent company or facility necessary to achieve the purpose of the contract (see Supreme Court Decision 2016Da26466, Feb. 26, 2016).

The following facts may be acknowledged by adding the whole purport of the pleadings to each of the witness’s testimony, the evidence or evidence before and after the parties to the dispute, and the statements in Gap’s evidence and evidence set forth in Gap’s Nos. 48 through 51, 61, 63, 67, 68, 70, 72, and Eul’s No. 25 through 27 (including each number), the results of the plaintiff’s personal examination, and the witness’s testimony (a part of the plaintiffs worked before and after the relocation in 2007, hereinafter referred to as “the whole plaintiffs”).

① The scope of the intra-company subcontractor’s business affairs stipulated in the previous contract of this case was “the work for which the Defendant and the intra-company subcontractor agree separately from the work for the completion of the automobile at the Defendant Changwon Factory,” and its scope was not specified. On the other hand, in the modified contract of this case, the scope was more concrete compared to that prior to the transfer by specifying in the intra-company subcontractor’s business affairs through [Attachment 1] the contract of this case’s modification through

② In 207, most of the business facilities and materials, tools, etc. used by the employees of the intra-company subcontractor prior to the relocation of Drain in 2007 were owned by the Defendant. On the other hand, after the relocation of Drain in 2007, the company leased and used necessary equipment, such as the company’s own car, but considerable parts of equipment were provided by the Defendant.

③ The manufacturing and assembly of automobiles in Defendant Changwon Factory was conducted in most ways of manufacturing using the consortium labeling in 2007 before and after the relocation of Drain in 207. However, the relocation of Drain in 207.

Workers belonging to the in-house subcontractor were placed together with the employees belonging to the defendant on the consortiums left and left, and the location of the placement of workers belonging to the defendant and the employees belonging to the defendant was changed when the employees belonging to the in-house subcontractor and the employees belonging to the defendant appear good for working conditions. On the other hand, after the relocation in 2007, the in-house subcontractor was divided by dividing the employees belonging to the defendant and the employees belonging to the defendant in-house subcontractor into two units, and the work was divided so that the employees belonging to the defendant and the employees belonging to the in-house subcontractor do not work in the same position. However, even after the relocation in 207, there was a change in the position in charge of the employees belonging to the defendant in-house subcontractor and the employees belonging to the in-house subcontractor.

④ Prior to the relocation of Dra in 2007, workers belonging to an intra-company subcontractor performed simple and repetitive work by means of standard work books, unit work books, etc. prepared and distributed by the Defendant in advance. Where production methods change, the Defendant changed the above standard work books, unit work books, etc. to the new system, and provided employees belonging to the Defendant with education or necessary instructions regarding the change in the workplace to which the Defendant belongs, and, when new workers are input from the intra-company subcontractor, the Defendant’s workplace provided education and placement of the basic work methods with a certain period of time. On the other hand, after the relocation of Dra in 2007, employees belonging to the intra-company subcontractor conducted work with the standard work books, unit work books, etc., but when new workers are put into work, the employees belonging to an intra-company subcontractor, other than the Defendant’s workplace, provided education for the employees belonging to the same workplace, etc., and, if necessary, the Defendant provided training programs to the company and its detailed guidelines for the relocation of the work units after the relocation of the work units to the employees.

⑤ Prior to the relocation of Drain in 2007, where a vacancy occurs or the production volume increases due to the industrial accident, leave, etc. of the employee belonging to the defendant, the defendant requested the intra-company subcontractor to supplement the number of employees and let the employees belonging to the company work in substitution for the vacancy. In such cases, if the defendant's relevant department prepares a plan for replacement of the number of employees and submits it to the defendant's production management department, the production management department shall post the production opinion in the production management department, and thereafter the defendant's management department and planning division shall review the feasibility of the plan, and if the head of the headquarters, who is the highest person in charge of the defendant's original factory, notifies the company with the number of employees to be filled accordingly. On the other hand, after the relocation in 207 Dra, the intra-company subcontractor did not replace the vacancy of the employee belonging to the defendant, and the defendant adjusted the vacancy of the employee belonging to the defendant by JH, etc.

1. The starting and ending time of work, meal time, break time, etc. of workers belonging to an intra-company subcontractor before and after the relocation in 2007 are the same as the workers belonging to the defendant. The extension, night, and break time is determined by the defendant and the defendant's trade union after consultation, and the intra-company subcontractor did not participate in the decision-making process, but the employees belonging to the intra-company subcontractor were the same as those belonging to the defendant, and the employees belonging to the defendant were forced to work due to trade union activities, etc., if they were employed by the defendant.

7) Prior to the relocation of Dra in 2007, when an employee of an in-house subcontractor intends to use his/her early retirement, monthly retirement, leave, etc., he/she shall report to the workplace to which the Defendant belongs and received an application for relocation from the said employee. On the other hand, after the relocation of Dra in 2007, when an employee of an in-house subcontractor intends to use his/her early retirement, annual, monthly, or vacation, he/she reported to the workplace of the in-house subcontractor, other than the

① Prior to the relocation of Dra in 2007, the defendant's workplace prepared the work management system that contains the contents of the work management, including the management of the worker's relocation, the direction of work, the placement of work, the management of working hours, etc. for not only the worker belonging to the defendant but also the worker belonging to the company, the work site, the work site, the work site, the work site status, the work site status, etc., the work site status, the work site status, the work site status, and the work site status of each workplace. The work management system has operated and managed the number of divisions or positions including the worker belonging to the company, the situation of the occurrence of the accident by workplace, the details of the work site subject to the change of the accident target, or the main goal of the business plan. On the other hand, after the relocation of Dra in 207, the defendant's workplace exclusively manages only the worker belonging to the defendant's workplace, and the worker belonging to the company's workplace is managed by the company.

9. The contract cost for the relocation of an intra-company subcontractor in 207 was notified to the Defendant when the Defendant notifies the company of the present status of the relocation of each intra-company subcontractor prepared and operated separately. Based on this, the Defendant prepared a contract cost ledger for work in the intra-company subcontractor and sent it to the company through a series of procedures requested by the Defendant. The contract cost for work in the existing case is expected to be paid to an intra-company subcontractor in accordance with the Defendant’s payment standards. In addition, according to the claim for the contract cost prepared and demanded by the intra-company subcontractor, the portion related to the contract cost for work in this case is the total amount calculated by the number of employees under the previous contract for work in addition to the amount calculated by the number of employees under its control, and the portion related to the contract price for work in this case is the total amount calculated by the number of days under its control x X T/O number, and the portion related to the contract price for work in this case is the total amount x the number of days under its control x the number of days under its command.

3) Determination as to the performance of business prior to the relocation in 2007

In light of the above facts and the evidence and the whole purport of oral argument as seen earlier, some plaintiffs who worked before the relocation of Rara in 2007 are employed by the intra-company subcontractor in the above period and are dispatched to the original factory of the defendant and are under direct command and order from the defendant (the plaintiffs worked in the direct production process, and the contents below are focused on the continuous production process). (A) The automobile manufacturing service using the consortium labeling that continuously works in the contact labelling method, which continuously works in the contact with the defendant, are characterized by the following: ‘simperity' and ‘symability'. As well as the time and speed of the work, the movement speed of the contact labelling, etc. designed as a whole until the quantity and method of the work, are affected by the continuous suspension of the work and the necessity of the specific suspension of the work order, such as the suspension of the work order, and the specific suspension of the work order and the necessity of the specific suspension of the work order.

In the case of a consortium work due to the above characteristics, it is not easy to clearly distinguish the results of the work provided in itself and the work completed thereby, so it is not easy for an intra-company collaborative company to perform its own autonomous and independent work, and it is also difficult to input expertise or own technology in the process. Individual workers are performing their duties by repeating a differentiated work, such as part of the consortium, but only suspension of part of the process can cause interference with the entire production process, due to the characteristics of the production process using the consortium labeling that can cause interference with the entire production process, individual workers who work in the consortium are closely connected with the entire production process and are employed in the blocked work space, so the characteristics of the above consortium work are identical to those of workers who work in the blocked work space, and thus, the characteristics of the place and form of work in the above consultation work are unreasonable.

B) According to the terms of the contract of this case, the scope of work performed by the intra-company subcontractor is comprehensively and abstractly described as "work separately agreed upon by the defendant and the intra-company subcontractor" during the work for completion of the automobile. However, if the defendant's proposal of the increase in the contract cost was made, there was no separate agreement on the specific work at the time or preparation of additional documents in accordance with the agreement, and the monthly contract cost is paid to the intra-company subcontractor by calculating it from the first to the last day of the month according to the performance and completion of the day, but in light of the procedure for the determination of the monthly contract cost and the details of the payment, it appears that the contract price was set in proportion to the work hours invested by the employees of the intra-company subcontractor rather than the result of the day, and there was no time limit for accomplishing the purpose of the contract, and the defendant increased the contract price to pay to the intra-company subcontractor in consideration of the wage discount rate of the worker under its jurisdiction.

C) The process of performance of duties

Workers employed by in-house subcontractor in the defendant Changwon Factory were assigned to the same position as the employees employed by the defendant, and the same work was performed in terms of the content of work. The defendant decided on the commencement and completion of work of employees employed by in-house subcontractor, the grant of recess hours, extension, night and holiday work hours, working speed, etc. Meanwhile, the defendant had employees employed by in-house subcontractor prepare work schedule, work schedule, etc., and had employees employed by the defendant in-house subcontractor in-house subcontractor in-house management, and had them have the right of general allocation and modification of work rights. In addition, the defendant decided on the work volume, work method, work order, etc. to be performed by the above employees.

D) If the Defendant’s workplace instructs the method of performing its duties based on the Defendant’s work instruction, such as a standard work manual, unit work manual, etc., that the work of the Plaintiffs, who are qualified as a contracting party, repeats the same work and do not specifically require professional skills or the level of skill of the relevant worker, was not particularly required.

In light of the fact that it is difficult to see that the company's own technology was put into work, and that the plaintiffs' labor force was immediately combined in the defendant's production process since the company's professional skills or the worker's skill was not required, it seems that the purpose of the contract between the defendant and the in-house subcontractor was the provision of labor to the employees belonging to the in-house subcontractor.

E) At the time of December 22, 2003 to January 26, 2005, the relevant criminal judgment and related civil judgment related to the relevant civil judgment were determined as having been directed and ordered by the Defendant after the employees belonging to the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company employed in the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company

In light of the aforementioned facts and the evidence and the overall purport of the pleadings as seen earlier, even after the relocation in 2007, the Plaintiffs, who were input in the direct production process, should be deemed to have been employed by the in-house subcontractor and dispatched to the Defendant’s Changwon factory and received direct orders and orders from the Defendant. (A) Special characteristics of the method of a in-house work.

In other words, in the same position, workers belonging to an in-house subcontractor and workers belonging to the defendant are separated from those belonging to the same workplace, and both workers do not work in the same position by means of the re-transfer in 2007, and in the characteristics of the production using the in-house labeling, the duties assigned to each position are closely connected to the entire production process. Thus, notwithstanding the aforementioned classification, in-house subcontractor employees belonging to the defendant are practically composed of one working group with the employees belonging to the defendant, and are practically assigned to the defendant's business.

B) According to the contract of this case, the scope of work performed by an intra-company subcontractor is specified in detail compared to the contract of this case. However, in light of the method of calculating the contract price, the contract price paid to an intra-company subcontractor is basically set in proportion to the work hours invested by employees of the intra-company subcontractor rather than the result of work. Accordingly, the defendant has no choice but to have part of the workers of the intra-company subcontractor in order to verify the propriety of the contract price claimed by the intra-company subcontractor. In addition, the number of workers employed in each work performed by the intra-company subcontractor due to the determination of the contract price as above can not be independently determined by the intra-company subcontractor (the change between the position in charge of the intra-company subcontractor and the position in charge of the employee of the defendant after re-transfer in 207). In light of the purpose of the contract of this case is not the contract of this case, but the contract of this case is determined not to be the specific work price of the worker under the contract of this case.

C) After the relocation of Dra in 2007, the process of performing its duties, the head of the Si/Gun/Gu affiliated with the defendant did not issue a work order or provide education to workers belonging to the Si/Gun/Gu collaborative company. The vacancy of the workers belonging to the defendant was not replaced by the employees belonging to the Si/Gun collaborative company. The employees belonging to the Si/Gun collaborative company reported to the workplace of the Si/Gun collaborative company when they want to use early retirement, annual, monthly, and paid leave. However, even after the relocation of Dra in 2007, employees belonging to the Si/Gun collaborative company still worked in accordance with the standard work schedule and unit work schedule prepared by the defendant (in the case of the standard work schedule and unit work schedule, the basic contents are prepared by the defendant, even if the employees belonging to the Si/Gun collaborative company may change the details thereof by their own authority, and the defendant did not change the content thereof to the employees belonging to the Si/Gun/Gu collaborative company's independent authority, and the defendant still did not have the direction and supervision of the 20-year collaborative company's.

D) Even after re-transfer of the eligibility of contracting parties in 2007, the duties of the employees of an intra-company subcontractor are repeated in the same work, and there was no special need for professional skills or training of the relevant employees. As to the direct production process, it is difficult to deem that the company’s own technology has been put into work in that it basically conducted based on the standard work schedule and unit work schedule prepared by the Defendant. In this regard, it appears that the purpose of the contract between the Defendant and the intra-company subcontractor still existed in the provision of labor force to the employees of the company.

(c) Occurrence of a direct employment obligation;

According to the above, the defendant's provision of temporary agency work in the case of the plaintiffs who already provided temporary agency work more than two years before August 2, 2012, which is the enforcement date of the current Dispatch Act, the second year after the date of commencement of temporary agency work pursuant to Article 6-2 (1) 4 of the amended Dispatch Act, and the second year after the date of commencement of temporary agency work pursuant to Article 6-2 (1) 4 of the amended Dispatch Act, and second year after August 2, 2012, but second year after the temporary agency work period has not elapsed since August 2, 2012, if the plaintiffs had provided temporary agency work two years before the date of the current temporary agency work, it shall be deemed that Article 6-2 (1) 5 of the current

2. In the case of the plaintiffs employed by an intra-company subcontractor after the commencement of temporary agency work pursuant to Article 6-2 (1) 5 of the current Dispatch Act, the defendant is obligated to directly employ each of the plaintiffs. Thus, the defendant is obligated to express his/her intention of employment against the plaintiffs.

3. Determination on the claim for wage payment

A. Summary of the parties' assertion

1) The plaintiffs' assertion

The plaintiffs filed a claim for damages corresponding to the period from July 2013 to June 2016 (hereinafter referred to as the "period for request") inasmuch as the plaintiffs did not perform their duty to directly employ the plaintiffs as workers of the defendant on each date stated in the separate sheet No. 3 attached hereto, and the plaintiffs suffered damages equivalent to the amount obtained by deducting the amount of wages received as workers of in-house collaborative companies from the amount of wages that they could have received if they were the plaintiffs' employees.

In calculating the amount of wages that the plaintiffs could have received from the defendant while claiming damages equivalent to the difference in wages as above, the plaintiffs are based on overtime allowances (extensions), holiday allowances, special overtime allowances, night allowances (hereinafter referred to as "special overtime allowances"), annual allowances, and shift work allowances under the control of the company cooperation company in which the plaintiffs actually worked during the period of request in this case.

2) Defendant’s assertion

In this regard, the defendant, in calculating the amount of damages that the plaintiffs would have received from the defendant, ① the special allowance, annual allowance, and shift work allowance should be calculated on the basis of the working hours when the plaintiffs worked as the defendant's worker, not in-house subcontractor, and the annual work hours when the plaintiffs work as the defendant's worker. There is no assertion or proof as to this, so special allowance, annual allowance, and shift work allowance should not be included herein, and in the case of some plaintiffs, they do not meet the requirements for school expenses, so the school expenses should not be included therein. ② The difference of wages calculated as above should be deducted in accordance with the legal principles of profit and loss deduction in the case where there are retirement allowances received from the company of in-house cooperation after the date of occurrence of the employment obligation.

B. Defendant’s obligation to pay damages (1)

In a case where an employer fails to perform his/her duty to employ employees of an intra-company subcontractor pursuant to the amended Dispatch Act or the current provision of the employment obligation under the Act on Dispatching Workers, if the employer did not perform his/her duty, employees of an intra-company subcontractor were paid wages according to the standards for the payment of wages by the employer as employees of the employer if the employer fulfilled his/her duty, and in fact, employees of the intra-company subcontractor were paid only wages according to the standards for the payment of wages by the employer. Therefore, if the employer was the employee of the employer, damages equivalent to the difference between the amount of wages that could have been paid and the amount of wages paid by the employer would have been incurred. Such damages arise from the breach of the above duty of the user company as above. Therefore, the user company is obligated to compensate for damages equivalent to

Therefore, barring special circumstances, the defendant is obligated to pay damages equivalent to the difference between wages and the amount of wages calculated by deducting the amount of wages paid by the in-house subcontractor from the amount of wages that the plaintiffs could have received if they were employed for the defendant as to the period of request of this case.

2) Whether a retirement allowance deduction has been made

The amended Dispatch Act and the current Act on Dispatching Workers have the obligation to pay employee's compensation for damages to an in-house subcontractor as above. If an employee received retirement benefits from an in-house subcontractor after the occurrence of employment obligation, the part corresponding to the period after the date of occurrence of employment obligation is accrued for the same reason as that of the cause of the in-house subcontractor's failure to perform the employment obligation. Therefore, in calculating the amount of damages caused by nonperformance of employment obligation, the above part of retirement benefits should be additionally deducted in accordance with the legal principle of profit and loss deduction. Meanwhile, the above deduction for profit and loss is intended to adjust interests by deducting the benefits from the amount of damages if the victim or creditor who suffered damages due to tort or nonperformance at the same time gains profits due to tort or nonperformance at the same time, and the benefits that are deducted under the legal principle of profit and loss deduction are limited to the benefits in proximate causal relation with tort or nonperformance. Thus, if the employee seeks compensation for damages equivalent to the difference only for some period after the occurrence of the employment obligation, the part corresponding to the period after the date of occurrence of the obligation should be deemed to be limited to the amount corresponding to the retirement benefits.

Therefore, in calculating the defendant's damages for the plaintiffs, the part corresponding to the period of request in this case should be additionally deducted from the retirement allowances received by the plaintiffs from the in-house subcontractor.

C. The difference of wages before retirement allowance deduction is paid by the Defendant

If the purport of the entire pleadings is added to the statements in Gap evidence Nos. 53 through 56, 58, 73 through 76 (including branch numbers), and Eul evidence No. 22, if the plaintiffs were the defendant's employee during the period of request in this case, the difference of wages calculated by deducting the amount of wages paid by the inside partner company from the amount of wages that the plaintiffs could have received may be recognized as the same facts as the amount in the separate sheet No. 2, which is the amount prior to the retirement allowance deduction in the separate sheet No. 2.

In relation to the special overtime allowance, annual allowance, and shift work allowance, the Plaintiffs provided the Defendant with labor under the command and order of the Defendant at the Defendant Changwon Factory during the period of request of this case. Thus, in calculating the amount of wages that the Plaintiffs could have been paid if the Plaintiffs were the Defendant’s workers with respect to the period of request of this case, the Plaintiffs calculated the special overtime allowance, annual allowance, and shift work allowances based on the hours of work actually worked and the years used during the period of request of this case as the employees belonging to the in-house subcontractor (Provided, That in the case of the month in which the night allowance is not paid, it is difficult to see that the Plaintiffs had been

However, since the item of school expense, which the plaintiff ○○○ submitted the evidence No. 57 and sought by the plaintiff ○○○, was spent outside the period of this case, it did not include it in calculating the amount of wages that could have been paid if the defendant was a worker.

(ii) additional deductions of retirement pay;

Article 73 through 76 of the Evidence No. 73 to 76, Kimhae, December 26, 2018, December 28, 2018, and the purport of the entire pleadings as a result of the reply to each taxation information submission order issued by the shipping company on January 9, 2019, the amount corresponding to the period for request of the plaintiffs from the retirement benefits of this case can be acknowledged as having the same facts as the amount stated in the "Attachment No. 2 List of Retirement Allowances" as stated in the corresponding column. [Calculation Form in the case of plaintiff ○○○: 14,452,582, and 582: The period for calculation of the amount of retirement benefits of this case (the number of days stated in the corresponding column No. 14, Dec. 1, 2012 to 31, 2016). The corresponding amount of retirement benefits of this case should be calculated as stated in the corresponding column No. 1631, Dec. 16, 2016.

D. Sub-committee

Therefore, the defendant has the duty to pay damages for delay calculated from September 2, 2016, the day following the delivery date of a copy of the complaint of this case for KRW 10,00,00 from September 2, 2016 to December 5, 2018, each of the corresponding amounts in [the corresponding amounts in [Attachment 2] column 'the fixed amount (won) prior to the deduction of retirement allowance' - the corresponding amount in [Attachment 2], and for KRW 10,00,00 which the plaintiffs sought payment at the time of the filing of the suit of this case, and for the remainder, from December 6, 2018 to December 5, 2018, each of the following day after the delivery date of a copy of the application for change of the purport of the claim of this case and the application for change of the cause of the claim of this case, to December 6, 2018.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as there is no ground.

The presiding judge shall transfer a judge to another judge.

Judges Kim Su-soo

Judges flood dust:

1) If a worker has worked for the number of contractual working days during a month, it would be 1, and if he/she is unable to work for the contractual working days, the number of hours so deducted.

2) The number of production per hour;