2014Na48820 Retirement Allowance, etc.

1. A;

2. B

3. C.

4. D;

Bosene Co., Ltd.

Seoul Central District Court Decision 2013Gahap77794 Decided September 18, 2014

July 17, 2015

9, 2015 23

1. The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiffs' claims corresponding to the revoked part are dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from the corresponding date to the day of full payment of each corresponding amount in the "total amount of claim" column of attached Table and each corresponding amount in the "Initial Date of Delay Damages" column of attached Table.

2. Purport of appeal

The decision is as follows (the plaintiff, in the first instance court, sought payment of retirement pay to the defendant, extension, holidays, and annual leave pay, and the first instance court, which partially accepted the claim for retirement pay, dismissed the claim for payment of overtime, holiday, and annual leave pay, and only the defendant appealed, the subject of the decision of this court is limited to the part which the first instance court partially accepted among the claim for retirement pay and its delay damages).

1. Basic facts

A. The Defendant, who runs manufacture, import, and sales business, such as KONA, Scarf, and bags, concluded a contract with companies operating department stores such as lot department stores, new world department stores, and each department store operating companies, which purchase on credit the products manufactured or imported by the Defendant, sell the products manufactured or imported from the department store operated by the Defendant, and pay the Defendant the remainder after deducting the commission from the sales revenue, and agreed to dispatch the manpower to the Defendant to perform sales business within each department store.

B. The Plaintiffs prepared a sales service agreement with the Defendant around the corresponding day specified in the attached Table’s business commencement date. From the corresponding day to each of the above, the Plaintiffs performed their duties as a sales salesperson who sells the goods manufactured or imported by the Defendant within each department store, and terminated the sales business on each of the corresponding days indicated in the attached Table’s business completion date.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 12 and 17 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) The plaintiffs

The plaintiffs were workers who provided their labor under the direction and supervision of the defendant, and did not receive each retirement allowance as stated in the column of "amount claimed for retirement allowance" in the attached Table even if they retired from the defendant. The defendant is obligated to pay the retirement allowance to the plaintiffs.

2) The Defendant Plaintiff entered into a sales service contract with the Defendant and provided services accordingly, and cannot be viewed as the Defendant’s employee. Thus, the Defendant did not have a duty to pay retirement allowances to the Plaintiffs.

B. Determination

1) Whether the plaintiffs constitute workers under the Labor Standards Act

A) Legal principles

Determination as to whether a worker is a worker under the Labor Standards Act shall be made based on whether the form of a contract is an employment contract or a contract for employment, and whether a worker has a subordinate relationship with an employer for the purpose of wages in the business or workplace is determined by the employer, and whether the employer has considerable command and supervision during the performance of duties under the rules of employment or employment regulations, etc., whether the employer designates working hours and working places and is bound by the employer, whether the employer is able to operate his/her business on his/her own account, whether the employer has a risk, such as the creation of profit, loss, etc. through the provision of labor, whether the nature of remuneration has the nature of the work itself, whether the basic salary or fixed wage has been determined, whether the wage was withheld, and whether the wage was paid at source, and whether the status of the employer has been recognized as an employee under the Acts and subordinate statutes on social security system (see, e.g., Supreme Court Decision 90Da29099, supra).

B) the facts of recognition

The following facts may be acknowledged in full view of the evidence mentioned above and the statements mentioned in the evidence mentioned in the evidence mentioned in the above subparagraphs 2 through 9, 13, 14, 16, 18 through 20, 23, 24, 26, 27, 29, 30 (including a serial number; hereinafter the same shall apply), Eul 1 through 21, 24, 25, 28 through 37, 39, 40, 42, 44, 45, 48, 51 through 65, and some statements mentioned in the evidence mentioned in the evidence mentioned in the above subparagraphs, Gap 21, and 28, and the whole purport of the pleadings mentioned in the evidence mentioned in the above subparagraphs:

(1) Conclusion, etc. of sales services contracts

(A) Upon the introduction of the sales services system by terminating an existing employment contract with the salesperson in the clothing industry and entering into a sales services contract (hereinafter referred to as the “sales services system”), the Defendant also conducted the said system on a model basis in some sales stores (galgalian department store store store store store store store store store store store store store store store, etc.) in order to determine whether to introduce the sales services system around 2004.

(B) On August 2005, the Defendant concluded a sales service contract with the salesperson since September 1, 2005, where the store management results in the demonstration operation, and the sales increase, the Defendant decided to introduce the above system. On August 31, 2005, the Defendant held a meeting with the lower-class sales clerks of each store, and received a written resignation in a lump sum from the sales clerks on August 31, 2005 (hereinafter “instant contract”).

1. The contract period: (1) the contract period: (1) the day (0) October (0) of the year (0) ; (2) the workplace (1) ; (3) the department store (place of sale); (4) the sales service commission: the method of payment (5) the monthly sales commission: the amount of monthly sales commission less the amount of short-term employees’ wages; and (5) the amount of the difference after subtracting the amount of the difference from the monthly sales commission; and (6) the payment shall be made after subtracting the amount of the difference; (5) the amount of the base annual salary as a sales deposit; and (5) the amount of the annual salary as a sales deposit at the time of termination of the contract shall be accumulated, if adjustment of the sales service commission is necessary due to changes in status or any other cause during the contract period;

(2) Practice of salespersons, etc.

(A) The sales clerks are called 'beer (or first), 'beer (or second),' and 'members (or third)' according to the good, post, age, etc. of the conclusion of a contract. If the vacancy of the sales clerks occurs in each shop, if the sales clerks are recruited through job placement advertisements on the Internet at each shop and determine candidates for the sales clerks, the candidates entered into the instant contract with the Defendant.

(B) The sales clerks worked at the workplace stipulated in the instant contract, and carried out business activities using home appliances, fixtures, etc. owned by the Defendant. However, in the event that each shop falls short of one hand due to the use of leave due to pregnancy, childbirth, etc., the implementation of a department store sales promotion event, etc., they directly employed the short-term sales clerks or part-time sales clerks at each shop.

(C) From September 2005 to February 2007, the Defendant paid the said personnel expenses directly to the short-term salesperson or part-time salesperson in each store. However, from February 2007 to October 2009, the Defendant paid the said personnel expenses to the salesperson including the commission. However, as there were problems such as not paying the personnel expenses to the short-term salesperson, the Defendant returned from November 2009 to the direct salesperson in the manner that the Defendant paid the said personnel expenses to the short-term salesperson.

(D) Before the introduction of the sales service system, the sales clerks prepared a “long-term employee status list, short-term employee status list, and long-term employee leave plan stating the status, etc. of the sales clerks who work for each store regularly, and submitted them to the Defendant, and the Defendant confirmed them and gave approval, etc., and managed the status of the sales clerks’ status. Even after the introduction of the sales service system, there was a record of preparing and notifying the Defendant of the service status list, etc. under the above form, but the above service status list did not contain the Defendant’s approval system. In addition, although the Defendant demanded to register the hours of attendance from November 2012 to March 2013, 201, the above guidelines were temporarily implemented and suspended.

(E) According to the instant contract, the sales clerks paid a certain amount of reserve to the Defendant for the purpose of securing liability for damages caused by the destruction, damage, theft, etc. of the goods, and the Defendant, upon occurrence of damages therefrom, returned the amount remaining after appropriating it from the above reserve to the sales clerks.

(f) Sales clerks have received education on the introduction of new products and basic information on products twice a year from the Defendant.

(G) Sales clerks have received certain money from the Defendant on a holiday and Workers’ Day, such as tin, New Year’s Day, etc.

(3) Payment of fees;

(A) Fees to be paid to salespersons are calculated based on the amount calculated by multiplying the sales volume of each store by the “rate of commission” and “personal fee rate.” At the time of the introduction of the sales service system, the Defendant calculated approximately 24.45% of the previous annual salary of the salespersons (i.e., 8% of the annual salary increase + 16.45% of the cost of the four major insurance) and entered into the instant contract with the salespersons by calculating the “personal fee rate,” and the monthly sales volume of the products, such as handbags and KON, which the Defendant manufactured and imported and sold, and the Defendant introduced the upper limit (130% of the previous annual salary, 120%) and the lower limit (85% of the previous annual salary) of the annual salary and the lower limit (85% of the previous annual salary).

(B) Meanwhile, due to the unstable computerized system following the introduction of a new sales service system, the Defendant paid the commission fee by dividing the even number month and the odd month by two months around 2006 (by November 2006). On the other hand, once a certain amount (based on the benefits that had been received before the introduction of the sales service system, an amount raised by 8% on the said amount) was paid as the commission in each calendar month, and thereafter the commission fee was additionally paid after adding up the service fee to the sales amount in each even number month.

(C) In addition, as a result of a sudden decline in the sales revenue of the Defendant due to the occurrence of a financial crisis around September 2008, the Defendant introduced a fixed fee system until the second half of 2011, and returned to the existing fee system after the introduction of the fixed fee system.

(4) Payment of business income tax

Before the introduction of the sales service system, the defendant has withheld the labor income tax from the sales clerks, but after the introduction of the above system, the sales clerks paid the business income tax directly.

C) Determination

(1) According to the above facts, where salespersons, including the plaintiffs, employ short-term salespersons, etc., only the main body of payment was changed, and the cost was paid out of the sales amount of each store. Thus, the defendant bears expenses, and some salespersons prepared and notified the defendant by making up the status of each sales store's work, etc., and the defendant demanded the defendant to report the current status of the sales salesperson's work hours, etc. through the internal computer network from November 2012 to March 2013, 2013, and notified the fact that the defendant notified the public notice. The fact that the sales salesperson received certain money from the defendant on the name of the sales salesperson and the date of the sales, such as stone, snow, etc., and that the sales salesperson received certain money from the defendant, and the sales salesperson received money from the defendant according to the fee rate upper and lower system of sales rate, sales, sales, and personal fee rate, etc.

(2) However, in light of the following facts and circumstances revealed in full view of the facts and the purport of the entire arguments, the evidence submitted by the plaintiffs alone cannot be deemed as having provided labor to the defendant in a subordinate relationship with the business or workplace for the purpose of wages, and there is no other evidence to acknowledge this otherwise.

① The instant contract only provides for the place of work, term of contract, fee rate to be paid by the salesperson, etc., and does not stipulate any provision on the method of performing duties, details of the obligation to be borne, grounds for termination of the contract, etc., and does not include any provision on the part of the salesperson, including the Plaintiffs, to whom the rules of employment applied to regular employees of the Defendant. Moreover, the Plaintiffs did not receive a personnel order on promotion, relocation, etc. of burial. Furthermore, the Plaintiffs also did not receive a personnel order from the Defendant. ② The Plaintiffs and other sales clerks are deemed to have entered into the instant contract after sufficiently explaining from the Defendant the details of duties following the introduction of the sales service system, the introduction of the fee system, and both received retirement allowances for the existing continuous employment period following the introduction of the said system. The sales clerks are considered to have the advantage of increasing income through autonomous performance of duties by well recognizing the difference between the previous employment contract and the instant contract, and are considered to have concluded the instant contract after voluntarily submitting a resignation.

(3) The places where salespersons, including the Plaintiffs, are to work are not voluntarily designated by the Defendant, but appears to have been decided upon by the agreement between the salespersons and the Defendant, taking into account the convenience in the attendance of the salespersons at work, sales of the relevant stores, etc. In the event that stores are determined under the instant contract, the relocation to other stores was not well achieved, and even in the case where other stores are moved, it appears that the agreement between the salespersons and the Defendant was reached. Generally, it is sufficiently possible for the Plaintiffs to delegate certain time and place under the delegation agreement. As such, the Plaintiffs’ place of work is determined as the department store, and the hours of work is determined as the hours and place of work due to the nature of the department store sales business, and it

④ The sales clerks are classified as '(or first), 'members (or second),' or 'third', not as classified by the Defendant, but as the name voluntarily given by the sales clerks according to the employment career. Before entering into the instant contract, the sales clerks have received incentives, etc. from the Defendant to set the sales target for each sales store and evaluate the achievement rate of the sales target. However, since the instant contract was concluded, the sales clerks have not been properly paid the sales target or recommended to increase the sales target for each sales, and only received fees for each sales store's profit rate.

⑤ Prior to the conclusion of the instant contract, the sales clerks prepared and reported the current status of the sales clerks for each store on a regular basis to the Defendant, and the Defendant managed the current status of the sales clerks’ status through approval therefor, but it appears that the sales clerks did not manage the current status of the sales clerks’ status after the conclusion of the instant contract. However, even after the conclusion of the instant contract, the sales clerks partially notified the Defendant of the current status of the sales clerks through the form of the current status of their employment employed before and after the conclusion of the instant contract. However, the current status of the sales clerks did not include the Defendant’s approval system, but only received the commission fee rate of each store and individual fee rate regardless of the current status of the sales clerks, and even if the current status of the sales clerks’ status of the sales clerks was defective, they did not have any means to reduce the commission rate and transfer them to other stores, and did not have any actual disadvantage. In light of the fact that the sales clerks were not actually notified to the Defendant of the current status of their employment for the smooth operation of each store through the convenience of contact with each store and the Defendant.

(6) In addition, from November 2012 to March 2013, the Defendant demanded the salesperson to enter the hours of attendance and the current status of work, etc. through the internal server, or notified the salesperson thereof, and the salesperson appears to have entered or retired from the department store business hours (from 10:30 to 20:00). However, the Defendant’s demand for a report on the current status of attendance through the internal server was relatively short period of time (this is compared to the Defendant’s demand for a report on the current status of attendance and retirement through his fingerprint registration for regular employees). The Defendant did not take the above measures for the remaining period except for the above period, and the factual restriction on the hours of attendance and retirement appears to be inevitable restrictions on the business hours of department stores, etc., which are working places, and there was no degree of disadvantage imposed by the Defendant due to the absence, dismissal, etc.

7) Under the instant contract, the Defendant has received a certain amount of money from the sales clerks as a security deposit to secure their liability for damages caused by the destruction, damage, and theft of goods. The risks of goods except for sale have been basically imposed upon the sales clerks. In addition, the Plaintiffs received education twice a year from the Defendant to hear the product explanation, etc. following the delivery of new goods, but such education was merely received merely from the Defendant at the time of the delivery of new goods to increase sales profits. The aforementioned education received by the sales clerks is distinguishable not only from the contents and frequency of education received by regular employees, but also from the Defendant’s participation in education (the Defendant’s regular employees are subject to education on duties, manager education, regular health education, and prevention of sexual harassment on several occasions from the Defendant). It appears that the Plaintiffs were not subject to the Defendant’s duty to freely take charge of performing their duties and supervision in the process of performing their duties without any restriction on the use of leave from the Defendant’s agent by a third party, such as short-term sales clerks, and thus, it appears that they were subject to the Defendant’s duty to direction or supervision.

8. The sales commission is basically paid to the Defendant, and there is a significant difference between the Defendant and the sales commission actually paid to the Defendant. Although the Defendant introduced the fixed fee system from time to time, it was based on Article 8 of the instant contract, it appears to have been introduced to prevent the decrease of the Defendant’s sales revenue or the Defendant’s sales rate of the products manufactured and imported from time to time from 00. The Defendant’s payment of the fixed fee system from 00 to 10.00, it is difficult to view that the Plaintiff received fixed fees from the Defendant or changed the nature of the sales commission system from 0.0,000 to 20,000,0000,0000 won from 0.10,000,0000 won and 20.0,000,000 won and 20,000,000 won and 20,000,000 won and 20,000,000 won.

① Sales clerks, including the Plaintiffs, sell only products manufactured and imported by the Defendant at each relevant store, and receive fees therefrom are the essential content of the instant contract, and it is difficult to say that the sales clerks themselves are an important factor in determining whether they are workers.

① The Defendant did not report the purchase of the fourth insurance policy to the Plaintiffs, or did not pay the insurance premium, and only the business income tax has been paid to the Plaintiffs.

2) Sub-committee

Therefore, as long as the plaintiffs do not constitute workers under the Labor Standards Act, the plaintiffs' claims on different premise are without merit without further review.

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed as it is without merit. Since the part against the defendant in the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of first instance shall be accepted by the defendant's appeal and the part against the defendant in the judgment of first instance shall be revoked and all of the claims against

The presiding judge, Kim Gung-gi

Judges Lee Hyun-woo

Judges Gin-dong

1) A year-based agreement was concluded.