Plaintiff 1 and six others (Law Firm Shin & Shin, Attorneys Park Jae-chul et al., Counsel for the plaintiff-appellant)

Brazil Capital and World Loan Co., Ltd. (Law Firm Square, Attorneys Kim Jong-sung et al., Counsel for the plaintiff-appellant)

April 25, 2017

1. The defendant shall pay to the plaintiffs 20% interest per annum from each day to the day of full payment as stated in the "amount of discount" in the attached retirement allowance calculation sheet, and as to each of them, the amount of interest calculated at the rate of 20% per annum.

2. The remaining claims of Plaintiffs 2, 3, 4, 5, and 6 are dismissed, respectively.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 20% interest per annum from each day to the day of full payment as stated in the separate sheet for calculation of retirement pay in the separate sheet, and as to each of them, 20% interest per annum from each day to the day of full payment.

1. Basic facts

A. The Plaintiffs concluded an entrustment contract with the Defendant (hereinafter “Defendant Company”) which is a debt collection company, and followed: (a) those who were engaged in the Defendant’s debt collection business as indicated in the Table â……………………….

The service period of the Plaintiff (1) 1 from September 1, 2004 to July 30, 2013 from July 13, 2008 to July 30, 2014 from September 30, 2014 to January 41, 2015 from January 16, 2012 to May 5, 2015, 209 to December 6, 2013, 2013 to July 30, 2013 to July 30, 2014 to May 31, 2015;

1) Service period

B. The Plaintiffs concluded an entrustment contract with the Defendant on the six-month basis, and the part related to the instant case in the terms of the contract is as follows (However, “A or Company” refers to the Defendant, and “B” refers to the claims collection agency; hereinafter collectively referred to as “instant entrustment contract”).

(2) If the aggregate collection rate of Gap's retirement allowance is less than 0.2% per day (if the rate of collection of retained bonds is less than 0.2%, daily allowance may not be paid) is less than 12% ( principal + interest) of the collected amount, and if the aggregate collection rate of Gap's retirement allowance is less than 1,00,000 won, it shall be paid to Gap's employees under Article 3 (Entrustment Fee and Monetary Rewards)- (1) of the Act on the Protection of Personal Information and Communications Network Utilization and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection and Information Protection.

【Reasons for Recognition】 1-4, 6-8 Evidence Nos. 1-2, 2-2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The plaintiffs are workers under the Labor Standards Act.

B. Defendant’s assertion

The plaintiffs are free enterprisers who concluded an entrustment contract with the defendant for collecting claims, not workers under the Labor Standards Act.

3. Determination

A. As to whether the plaintiffs constitute workers under the Labor Standards Act

1) Relevant legal principles (see Supreme Court Decision 2004Da29736 decided Dec. 7, 2006, etc.)

The determination of whether a contract constitutes a “worker” ought to be based on whether a worker provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace, rather than whether the contract is an employment contract or a contract for work. Whether a subordinate relationship is determined by determining the content of work, and whether the employer has considerable command and supervision in the process of performing work, such as employment rules or personnel regulations, etc. The employer is obliged to designate working hours and working places, and whether the employer is bound by the employer, whether the employer is capable of operating his/her business on his/her own account, such as holding equipment, raw materials, working tools, etc. or having a third party employ a third party, whether the employer has a risk, such as the creation of profit and loss, etc. through the provision of labor, whether the nature of remuneration has the nature of work itself, whether the nature of remuneration was determined, whether the basic wage or fixed wage was determined, and other matters concerning remuneration for wage income tax, whether or not the continuous provision of labor and its degree of exclusive affiliation to the employer, and whether the status of an employee is recognized as a social security system.

2) Facts and circumstances acknowledged in the instant case are as follows.

A) Claims collection business accounts for a regular, essential, and core part of the Defendant’s objective business. Therefore, the Defendant’s attempt to direct and supervise claims collection center, including the Plaintiffs, in many respects. This also applies to cases where the Defendant has a fee system under which the increase in the fees that the claims collection center may receive after purchasing only a long-term delayed claim, unlike a credit information company that collects various kinds of claims for a certain period delegated by the Defendant, and the business structure and performance of the collection of claims are increased.

B) Next, Nonparty 1 (from December 21, 2005 to June 30, 2014) who was a debt collector, is “the Defendant’s business process through a setnet,” recognized by the court in the appellate court (Seoul High Court 2015Na2056251; hereinafter “instant related lawsuit”) of a retirement allowance claim lawsuit filed against the Defendant against the Defendant. This method is also deemed to have been applied to Nonparty 1 and the Plaintiffs whose service period overlaps.

The debt collection officer, who had conducted the business of collecting claims allocated by the Defendant Company, processed the overall business of collecting claims through the Defendant Company’s Humannet System. The debt collection officer access to the Defendant Company’s Human Information and Credit Information, etc. was allowed to peruse the obligor’s personal information and credit information. The debt collection officer either received various forms or conducted online approval procedures through the Defendant Company’s Human Information and Communications Network. The debt collection officer entered the estimated amount of recovery and the actual amount of recovery in connection with the “Japan’s Report.” The employees of the Defendant Company’s full-time employees or the team leader (ju 2) requested or instructed the Defendant Company’s Real Estate Information and Communications Network’s Personal Information and Communications Network’s Information and Communications Network’s Information and Communications Network’s Information and Communications Network’s Information and Communications Network Information and Communications Network Information and Communications Network Information and Communications Network Information and Communications Network Information and Communications Network Information and Communications Network Information’s Information and Communications Network Information and Communications Network Information and Communications Network Information’s Information and Communications Network Information and Communications Network Information and Communications Network’s Information and Communications Network Information’s Information and Communications Network’s Information.

Note 2) The team leader;

C) Specific direction of work

○ The following is an instruction given by the head of the defendant company to the claims collection officer by the message of the Indiannet.

The slip included in the main text * Japan's Schedule * Japan's Schedule . * The liquor tax on the business of the defendant company is often needed to concentrate on the work of the defendant company. When collection money (the debt collector refers to the visit of the debtor's residence, etc. to perform collection activities) is collected, the collection of claims shall be recorded in the ledger and computer. * * The total number of persons shall be trained at 10:00 per day:00,000, and all of them shall be present. * the 50:00 on January 2. 9:00. * The request is made to be made to be kept late. * The 9:15:00 on September 15:00. * The 10:30:00 on May 30, 1999. * The 10:000 on May 30, 2000: The 10:00 on October 1, 201.

In the process of ○○ litigation, the claims collector participated in the litigation on behalf of the Defendant Company, and thereafter registered the relation, issues, results, and other progress of the adjudication division in the “current proceedings by the adjudication division” column of the Defendant Company’s team leader in accordance with the direction of the division leader of the Defendant Company. In particular, the Defendant Company team leader required the claims collector to report to the claims collector prior to the debt adjustment agreement, and emphasized that approval is impossible unless otherwise, the approval was given. Even the Defendant Company team leader even designated the withdrawal clause by ordering the claims collector to withdraw the lawsuit.

○ The following is the content of the “specific work instruction” acknowledged by the court in the instant lawsuit, and the Plaintiffs, who overlap with Nonparty 1, could not be free from such instruction.

The head of the △△△ Company’s team, contained in the main text, sent or instructed the claims collector’s overall details, such as the specific business process method, performance improvement, contents related to the allocation of claims, distribution of claims, past position-related matters, reward, etc. to the claims collector, or the Mesenger’s public notice or the Mesenger’s notice. The Defendant Company ordered the claims collector to undergo an inspection of the head of the team’s team’s dispatch documents, such as mail, re-delivery mail, and re-delivery mail, as well as simple contents. The Defendant Company ordered the claims collector to use postal forms registered with the Financial Supervisory Service, and ordered the Defendant Company to use the changed form in the course of changing the guide of claims transfer. Upon completion of the claims collection activities, the Defendant Company ordered the claims collector to report to the head of the team prior to the completion of the claims collection activities. The Defendant Company directed the claims collector to accurately enter the name and the date of request for settlement in the settlement and deposit.

D)Management of the record of recalls;

○ The Defendant Company posted the amount collected by each source of debt collection in the order of monthly order on the Barnet.

○ The Defendant Company implemented various monetary rewards systems based on the results of recovery. For example, the Defendant Company selected excellent persons who have achieved recovery, excellent persons who have increased rates compared to average collection amounts, and 3) excellent persons who have received collection, and paid monetary rewards in cash.

E) Next, the following is the content of the “finite management” acknowledged by the court in the instant lawsuit, and the management of such content was also implemented against Nonparty 1 and the Plaintiffs whose service period overlaps.

본문내 포함된 표 ⑴ 피고 회사는 채권추심원의 출근시간을 ‘오전 9시’, 퇴근시간을 ‘오후 6시’로 정한 다음 오전 9시 이후 출근하는 경우 지각으로 처리하였다. 채권추심원이 인트라넷에 로그인·로그아웃한 경우 해당 시간이 자동으로 출·퇴근시간으로 인식되도록 하였다. 채권추심원이 장시간 자리를 비우는 횟수가 잦아지자 피고 회사는 ‘지문인식 시스템’을 도입하여 출·퇴근시간을 엄격히 관리하였다. 피고 회사는 이러한 근태현황을 바탕으로 채권추심원에게 출근수당(만근수당)을 지급하였다. ⑵ 피고 회사는 인트라넷 공지사항에 “피고 회사가 근태를 강조하는 이유는 여러분 중 일부가 상습적으로 9시를 넘겨서 출근할 뿐만 아니라 9시 출근 이후에도 장시간 자리를 비우는 경우가 빈번하기 때문입니다. 출근 후 장시간 자리를 비우는 행위를 삼가기 바랍니다. 9시는 출근시간이 아니라 업무개시시간입니다.”라는 내용을 게시하였다. ⑶ 채권추심원이 집금활동을 위하여 외근하는 경우 피고 회사는 채권추심원으로 하여금 ‘집금대장’에 출발시간, 업무종료예정시간, 귀사예정시간, 채무자 이름과 회원번호, 방문지 주소, 외근사유를 기재하게 한 다음 팀장의 사전 승인과 사후 확인을 받도록 하였다. 이와 관련하여 피고 회사는 채권추심원으로 하여금 인트라넷에 진행 경과, 고객 상태, 방문사유, 방문결과, 집금액 등을 입력하도록 하였다. ⑷ 피고 회사는 채권추심원으로 하여금 업무 이외 목적으로 인터넷을 사용하지 못하도록 하면서 “이로 인해 전산장애가 발생할 경우 1개월간 인터넷 사용금지, 시말서 작성, 근태 포상금 제외”와 같은 제재를 가하였고 ‘일정한 경우 중징계처분 한다’고 공지하였다. ⑸ 채권추심원이 사무실 전화를 이용할 경우 피고 회사는 인트라넷에 통화시작시간, 착신번호, 발신번호 등 통화내역이 전부 기록되도록 하였다. ⑹ 그 밖에 피고 회사는 채권추심원에게 휴가일정을 미리 보고하도록 지시하였고, 피고 회사는 팀별, 파트별로 채권추심원의 자리를 지정하였으며, 피고 회사는 겸직 자체를 금지하지는 않았으나 추심업무에 충실할 것을 요구하였고 신규로 채권추심원을 추천받을 때도 추심업무에만 집중할 수 있는 채권추심원을 희망하였다.

F) As above, matters such as “work process method through a setnet,” “specific work instruction,” “management of recovery performance,” and “management of probationary management” appear to have continued within the working period of the Plaintiffs in the above basic facts.

(g) Other matters.

○ Around October of each month, Defendant Company paid to the claims collector fees, etc. based on the result of collection of claims without basic pay or fixed pay. However, such payment method is merely based on the nature of claims collection business, and it is difficult to view that such payment method does not have the nature of wages as consideration for the amount and quality of work provided by claims collector for the Defendant Company, on the ground that it is a fee as above.

○ The Defendant Company refunded the “expenses incurred in legal measures” borne by the claims collector at his own expense.

○ Defendant Company provided the debt collector with office, book, chair, computer and borne office expenses.

【Ground for recognition】 Each entry in Gap evidence Nos. 4, 5, 7, 8, 10-21, and Eul evidence No. 10 (including branch numbers), and the purport of the whole pleadings

3) Sub-decisions

A) In full view of the facts and circumstances found in light of the aforementioned legal principles, the Plaintiffs, as a debt collector, concluded the instant consignment contract with the Defendant, but in substance, constituted an employee under the Labor Standards Act, who provided labor to the Defendant, the employer, for the purpose of wages.

B) Judgment on the defendant's assertion

The defendant asserts that, even if the plaintiffs were employed by the defendant, since November 2012, the non-party 2 filed a retirement allowance claim lawsuit against the defendant, the defendant did not direct, supervise, and manage the debt collection center's business, and therefore, the plaintiffs should not be regarded as the defendant's employee from the above point of time.

However, as recognized earlier, matters such as the Defendant Company’s “business process method through the Barnet,” “specific business instruction,” “management of recovery performance,” and “management of work performance,” are deemed to have continued within the work period of the Plaintiffs in the above basic facts, including before and after November 2012, and thus, the Defendant’s assertion that differs from this premise is without merit.

Furthermore, the defendant asserts that even after the above point of time, even if the plaintiffs continue to be the workers of the defendant, at least the plaintiffs shall not be deemed the workers of another company from the time when other business income accrued.

According to the results of the fact-finding inquiry about the light asset management loan (hereinafter “here light loan”) issued by the Bank of Korea to the National Tax Service, the Plaintiffs are recognized as having earned income from other workplaces than the Defendant Company even while working in the Defendant Company as indicated below:

[Attachment 1-1-2, 1-2, 1-2, 3-1-7, 2, 20-7, 2-1-7, 3-1-7, 20-7, 4-1-7, 20-7, 20-7, 1-7, 20-1-7, 20-7, 1-7, 2-1-7, 20-7, 1-7, 2-1-7, 1-7, 2-4, 1-7, 1-7, 2, 1-7, 3-1-7, 1-7, 2-4, 1-7, 1-6, 2-4, 1-7, 2-5, 2, 20-14, 20-7, 1-6, 3-5, 204, 1-7, 2013

However, solely based on the above facts, it is difficult to view that the "subsidiary nature of the claims collection business that the plaintiff provided to the defendant" recognized in light of the facts and circumstances set forth in the above subparagraph 3-A (2) is immediately denied from the time when the plaintiff started to earn income from other work places than the defendant company. Thus, the defendant's assertion that differs from this premise is without merit.

B. Regarding the plaintiffs' retirement allowance claim

1) Defendant’s duty to pay retirement allowances

As seen earlier, the plaintiffs were retired while performing claims collection business for not less than one year as the workers who provided their labor to the defendant who is the employer for the purpose of wages. Therefore, the defendant is obliged to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act to the plaintiffs.

2) Scope of retirement pay

A) Calculation of average wages per day;

There is no de facto dispute between the parties on the calculation period of average wages in a reasonable and reasonable way that can reflect the ordinary living wages of the ○○ employee as true and that the calculation period of average wages shall be the one-year period prior to retirement as stated in the annexed retirement allowance calculation table.

○ Received amount during the calculation period

First of all, there is no dispute between the parties as stated in the "amount received during the calculation period" of the above calculation schedule as the total amount of the fees received by the Plaintiffs for one year prior to the withdrawal of the company (However, although Plaintiff 3 asserts that the above received amount is KRW 11,964,255, it is clear that it is a clerical error in KRW 11,964,552).

However, the Defendant asserts that, among the above received amounts, the amount of installment interest collected, interest recovery rewards, and transportation expenses cannot be deemed as payment for work, should be excluded from the total amount of wages paid within the average wage calculation period. For example, in the case of Plaintiff 1, the amount received in November (payment date: December 10, 2012) of 6,515,628, which is within the calculation period, is KRW 5,931,571, which is KRW 5,00,000 and KRW 1,80,000,000 are merely KRW 6,921,571, which is the amount received.

However, according to the purport of the argument as a whole, although the payment method differs depending on whether the debt collector collects the interest in installments or collects it in one lump sum, all of them shall be the kind of performance rate arising from the collection performance directly related to the provision of the work of the debt collector's "interest recovery". Thus, they shall be deemed to have the nature of the payment for the work.

In addition, according to the purport of the whole pleadings, transportation expenses were uniformly paid according to the number of days of attendance so that claims collection personnel can smoothly provide labor, and therefore, it is difficult to see that the defendant is merely compensating for actual expenses at a low level without the obligation to pay, and it is also included in the scope of wages subject to work.

Ultimately, the defendant's above assertion that differs from this premise cannot be accepted, and it is deemed that the received amount of the average wage for the calculation period is the same as that stated in the above calculation period table.

Therefore, if the average wage per day for each plaintiff is calculated according to the calculation formula (i.e., the amount received during the calculation period / the total number of 365 days during the calculation period, and the amount below the won shall be discarded; hereinafter the same shall apply), the amount is as stated in the "average wage per day" in the above calculation sheet.

B)the calculation of retirement allowances;

As seen from the above basic facts, the service period of each plaintiff is the same as the corresponding period indicated in the separate sheet for the calculation of retirement allowances (in this regard, Plaintiff 2 from October 1, 2008; Plaintiff 3 from September 1, 2009; Plaintiff 4 from December 1, 201; Plaintiff 5 from July 1, 2009; and Plaintiff 6 from January 1, 2010 to their own service period. However, as the date of the first consignment contract, Plaintiff 2 is the date of execution of the above basic facts, and Plaintiff 3 from September 16, 2008 to September 16, 2008; Plaintiff 4 from September 16, 2012 to December 16, 201; Plaintiff 5 from July 1, 2009 to June 6, 2015, respectively.). Thus, Plaintiff 2 is not acceptable to the extent that there is no clear evidence supporting the above assertion.

3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiffs each money stated in the "amount of discount" in the attached retirement allowance calculation sheet as retirement allowance and each of them 14 days after the retirement date of the plaintiffs, and to pay damages for delay calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from each date to the date of full payment as requested by the plaintiffs, as claimed by the plaintiffs.

4. Conclusion

Therefore, the claims of plaintiffs 1 and 7 shall be accepted on the grounds of their reasoning, and the claims of plaintiffs 2, 3, 4, 5, and 6 shall be accepted only within the scope of the above recognition, and it is so decided as per Disposition.

[Attachment]

Judges Man-sap

1) The period of service of Plaintiffs 2, 3, 4, 5, and 6 shall begin from the date when the first commission contract was concluded.

2) The Defendant Company divided the debt collection center into one team and two teams and appointed the team leader as a regular employee.

3) As of November 4, 2010, six teams per team were located.

Note 4) Attached Form of the preparatory brief dated May 19, 2016 submitted by the Defendant

Note 5) Attached Form of the preparatory brief dated May 19, 2016 submitted by the Defendant

Note 6) Attached Form 1 of the Briefs submitted by the Defendant on December 19, 2016

Note 7) The last day of the service period does not include as requested by the Plaintiffs.

As seen above, most of the plaintiffs' claims except the initial date of calculation of the period of employment are accepted, so it is not deemed that there is a reason to exclude interest in arrears as prescribed by Article 18 subparagraph 3 of the Enforcement Decree of the Labor Standards Act.