Whether a party member company is obligated to pay wages to a person who has entered into an employment contract with a local owner company on the operation of a vehicle (affirmative)

In the event that a local owner owner enters into an entrustment management and operation contract with a local owner company and employs a third party for the operation of the local owner's vehicle, the local owner company is obligated to pay wages to the third party, as long as the third party agreed not to claim wages to the local owner company at the time of the conclusion of the employment contract, but the local owner company is obligated to pay wages to the third party unless the special agreement is approved that the local owner company will be responsible for the payment of wages to the local owner's driver's of the local owner company.

Article 655 of the Civil Act, Article 27 of the Automobile Transport Business Act

Gyeongnam Trade Co., Ltd.

Changwon District Court Decision 97Da38555 delivered on January 14, 1998

1. The defendant's appeal is dismissed.

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

The defendant shall pay to the plaintiff 4,14,12 won with 25% interest per annum from the day following the service of a copy of the complaint of this case to the day of full payment.

The judgment below is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively considering the whole purport of the pleading in each entry in Gap evidence 1, Eul evidence 1, Eul evidence 2, Eul evidence 2-1, Eul evidence 3-2, Eul evidence 4-1, Eul evidence 4-2, Eul evidence 5, Eul evidence 6-1, and Eul evidence 6-2, and there is no counter-proof.

A. On September 1, 1995, Non-party No. 58-3, Jink-dong, Jink-si, and the depth of the company registered the business under the name of the non-party, separately from the defendant company. On September 1, 1995, the defendant company and the defendant company entered into the entrustment management and operation agreement to take full charge of the non-party's management and operation of the general area cargo container transport business reported by the defendant company in accordance with Article 27 of the Automobile Transport Business Act in order for the non-party to use the non-party's general area cargo container transport business.

B. When the Defendant Company entered into an entrustment management operation agreement with the Nonparty, the Defendant Company is acting on behalf of the Nonparty, and the Nonparty paid a security deposit and the consignment management fee to be entrusted with the management of the vehicles registered in the name of the Defendant Company, the Nonparty immediately submit to the Defendant Company a written labor contract by the drivers and other workers necessary for the operation, and directly comply with labor-related Acts, such as the payment of wages, etc. for the management of labor management, and submitted the wage ledger to the Defendant Company upon receipt of the receiver, and the employees in arrears with the payment of the above premium for three months or more, the Defendant Company agreed to allow the termination of the entrustment management contract. However, the Defendant Company was acting on behalf of the Nonparty for the instant vehicle, and was paying the monthly consignment fee from the Nonparty, and was paying the taxes, and was actually receiving the employment contract for the instant vehicle from the Nonparty, and was in full charge and exclusive charge of the Nonparty’s management and operation of the instant vehicle, appointment of driving technicians, and payment of wages.

C. On November 22, 1995, the Plaintiff entered into an employment contract with the Nonparty to receive KRW 1,500,000 per month from the Nonparty, and did not receive KRW 4,14,12 from the Nonparty as the sum of KRW 1,90,000 and retirement allowance of KRW 2,244,112 from the Nonparty while serving as a driver of the instant vehicle until May 27, 1997.

D. However, the Plaintiff knew that the instant vehicle is not in the form of the above consignment management operation contract, but is not in the form of the above consignment management operation contract, and the Defendant Company’s mark is attached to the entrance of the instant vehicle. After concluding an employment contract with the Nonparty, the Plaintiff submitted documents necessary for receiving industrial accident insurance benefits to female employees of the Nonparty. The Plaintiff completed the training course conducted in the Gyeongnam-do as an employee qualification of the Defendant Company.

2. Judgment on the parties' arguments

A. The plaintiff sought payment of KRW 4,144,12, which is the wages and retirement allowances not received from the non-party to the defendant company, a branch employee of the vehicle of this case. Thus, according to the facts acknowledged earlier, the plaintiff entered into a labor contract with the non-party to which the non-party would be paid monthly salary of KRW 1,500,000, while being employed as a driver for the vehicle of this case, the non-party was delegated with the comprehensive authority to employ a driver for the defendant company as to the vehicle of this case. Thus, the plaintiff employed by the non-party is an employee of the defendant company, and therefore, the defendant company, who is in the position of the employer, is obligated to pay KRW 4,14,12,00,000 for the total amount of unpaid wages, etc. to the non-party, who is an employee, barring special circumstances.

B. As to this, the Defendant asserted to the effect that the Nonparty did not perform the duty of submission of documents such as a labor contract at the time of employment of workers under the above consignment management contract, and that the Plaintiff was employed by the Nonparty as a driver for the instant vehicle, and that the Nonparty was not aware of the fact that the Plaintiff was employed as a driver for the instant vehicle, while concluding an entrustment management contract with the Nonparty on the instant vehicle, the Nonparty was responsible for the payment of wages to the instant driver for the instant vehicle. As such, the Defendant Company did not comply with the Plaintiff’s claim.

Therefore, in this case, where the plaintiff was employed as a driver of the vehicle of this case by the non-party who was delegated with the comprehensive authority to employ drivers for the vehicle of this case by the defendant company, the non-party did not perform the duty to submit documents related to employment contract or the plaintiff did not know the fact that the plaintiff was employed by the non-party, because it is merely an internal relationship between the defendant company and the non-party, and thus, the defendant company agreed not to claim wages, etc. for the defendant company while entering into an employment contract with the non-party, or did not approve the special agreement that the non-party, who was wholly responsible for the duty to pay wages, etc. for the driver of the vehicle of this case between the defendant company and the non-party, the defendant company is obligated to pay the above amount to the plaintiff as the employer. However, since there is no evidence to acknowledge that the plaintiff had agreed to do so between the plaintiff and the defendant company, or that the plaintiff approved such special agreement

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant shall be accepted on the grounds of its reasoning, and the judgment of the court below which has concluded this shall be justified, and the defendant's appeal disputing this is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Hong-woo (Presiding Judge)