(영문) 대구지방법원 2014.4.9. 선고 2013나302271 판결

A. After having paid a public notice of recruitment of private articles of incorporation (commission), the defendant entered into a commission contract with the plaintiff who applied for the report on recruitment of the Ministry of Employment and Labor on the job contents such as "professional counseling and support services for the liquidation of wages and remedy of rights of the worker in arrear", and the main contents of "contract for appointment of private articles of incorporation" made between the plaintiff and the plaintiff are as follows (hereinafter referred to as "commission contract

1. Contract period: From February 23, 2011 to December 12, 2011, the Permanent Employment Agency's Office of Customer Support for Workers: (a) Provision of professional counseling and support services for the settlement of wages, protection of vulnerable workers, protection of their rights, provision of other civil petition counseling and simple filing of reports; and (b) Provision of consultation and simple filing of reports: 60,000 won for basic counseling as of 8 hours per day, or 10,000 won for each case of overdue wages; (c) Provision of counseling and other unfair filing of reports; (d) Provision of counseling and support services for workers in arrears; and (e) Provision of counseling and other simple filing of reports; (e) Provision of counseling and counseling services for workers in arrears; and (e) provision of counseling and other unfair filing of reports shall be applied mutatis mutandis within 10,000 won per day before termination of the contract; and (e) provision of consultation and re-determination within 3 days before termination of the contract.

B. In accordance with the instant commissioning Agreement, the Plaintiff was in the position of “private assistance officer” at the Employment and Labor Agency affiliated with the Defendant from February 23, 2011 to December 31, 201, and performed counseling and coordination on overdue wages, etc.

C. On March 2011, the Plaintiff received KRW 1,140,000 for the basic case cost (19 minutes) and KRW 300,00 for the settlement case cost, and KRW 1,380,00 for the basic case cost around April 201, and KRW 330,00 for the settlement case cost, etc. from the Defendant while performing his/her duties.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1 to 4, 6, 7, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

As the Plaintiff entered into an employment contract with the Defendant and provided labor as a labor inspector from February 23, 201 to December 31, 201 under the direction and supervision of the labor inspector who is the team leader, the Plaintiff is obligated to pay the Plaintiff KRW 2,580,000 for paid holidays as prescribed by the Labor Standards Act.

B. Defendant’s assertion

The defendant asserts that it is not a contract of delegation between the plaintiff and the contract of delegation under the Civil Act, but a contract of delegation is not a contract of delegation under the Civil Act, and that it is not a beneficiary of weekly paid holiday allowances as provided in the Labor Standards Act,

3. Determination

A. Article 2(1)1 of the Labor Standards Act provides, regardless of the type of occupation, a person who provides work at a business or workplace for the purpose of wages. Whether a person is a worker should be determined in substance by whether the form of a contract is an employment contract or a contract for work at a business or workplace, depending on whether the worker provided work to an employer for the purpose of wages at a subordinate relationship

In order to determine whether such a subordinate relationship exists, the contents of business shall be determined by the employer, subject to the rules of employment or service regulations, and shall be subject to specific direction and supervision by the employer even during the performance of duties, whether they are subject to specific direction and supervision by the employer, whether they are designated working hours and working places by the employer, whether they are bound by the employer, whether they are replaced by their duties, such as providing a third party with equipment, etc., whether the characteristic of remuneration exists, whether basic salary or fixed wage is determined, whether they are subject to withholding tax on wage and salary income, matters concerning remuneration such as whether they are subject to withholding of wage and salary income tax, whether the status of workers is recognized under other Acts and subordinate statutes such as the continuity and degree of the relationship of providing labor, whether the status of workers is exclusive to the employer, whether the social and economic conditions of the Parties, etc. (see, e.g., Supreme Court Decisions 2012Da7706, Dec. 13, 2012; b. evidence and evidence No. 7.

However, the following circumstances acknowledged by the overall purport of the evidence and oral argument, namely, ① the provision on termination of the contract of this case, rather than the disciplinary provision under the rules of employment or personnel service regulations, are applied to the Plaintiff, and it is difficult to view that the relationship between the Defendant and the Plaintiff under the commission contract of this case exists as a typical subordinate to the employment. ② Even if the labor inspector in the department to which the Defendant belongs confirms and supervises the "management ledger of the Service Team" prepared by the private association of this case, it can be viewed as a process for efficient mutual understanding and cooperation. The Plaintiff’s content and duty were autonomously performed according to the Plaintiff’s duty of consultation and capacity, and it is difficult to view that the contract period of the Plaintiff’s work was not paid on the day according to the above consultation contract of this case, and it is difficult to view that the Plaintiff’s duty was not maintained at any time without being subject to disciplinary action or sanction, ③ it is difficult to view that the contract period of this case’s remuneration contract of this case as an exclusive wage rate of 20 days or 100 days under the Labor Standards Act.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.