2020Da207864 Retirement pay

It is as shown in the attached list of plaintiffs.

Attorney Oh Dong-soo et al., Counsel for the defendant-appellant

Samsung Products Co., Ltd.

Law Firm Sejong (LLC)

[Defendant-Appellee] Plaintiff 1 and 5 others

Seoul High Court Decision 2018Na2057880 Decided December 20, 2019

June 25, 2020

All appeals shall be dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds for appeal are determined.

1. Whether an employee is a worker under the Labor Standards Act or a contract for work, depending on whether an employee provided his/her work to an employer in a subordinate personal relationship with an employer for the purpose of wages in substance, should be determined by whether the employee provided his/her work for the purpose of wages. Whether an employee has a subordinate personal relationship should be determined by the employer’s contents of work, and shall be subject to rules of employment or regulations of service (personnel). Whether the employer has considerable direction and supervision in the course of performing work, whether the employer designates working hours and place and is subject to detention of the employee, whether the employee can engage in his/her business on his/her own account, such as owning equipment, raw materials, working tools, etc., or providing a third party with work on his/her behalf, and whether the employee has a risk, such as the creation of profit and loss by providing labor, and whether the employee has a basic wage or fixed wage, and whether the employee has a subordinate personal relationship with the employer, such as wages, should be determined by the relevant Act and subordinate statutes that guarantee the economic status of the employee (see, 20.7).

Meanwhile, the issue of whether a worker is a worker in an individual case with a worker sex ought to vary depending on the specific facts, such as the type of work at the individual workplace, and the degree of proof. In a case where the circumstances where it is difficult to recognize the worker sex as a result of a fact-finding examination, or where the party liable to prove the worker sex fails to submit evidence proving specific facts during the litigation process, the worker sex may be denied (see, e.g., Supreme Court Decision 2015Da252891, Apr. 15, 2016).

2. It can be seen that the consignment contract entered into with the plaintiff (the first instance court referred to as "the entrusted store manager," and the court below referred to as "the plaintiff," but only referred to as "the plaintiff,") was mixed with the elements that can affirm the employee status.

A. The kind and quantity of the goods to be supplied by the defendant shall be determined by the defendant, and the plaintiffs, in principle, sell only the goods supplied from the defendant to the contract site at the price determined by the defendant. The plaintiffs shall, in accordance with the defendant's criteria, conduct advertisements, such as display or display to promote the sale of the goods, and cooperate in the sales and promotional events of the defendant, and the defendant may, if necessary, request the plaintiff to operate the sales and promotional advertisements. The plaintiffs shall record and keep the inventory details of the goods in detail as prescribed by the defendant, and present them at the request of the defendant, and the defendant may hold a inventory, if necessary. Such matters are elements to affirm the worker's nature.

B. Defendant shall pay to the Plaintiffs a certain percentage of the monthly sales performance of goods as consignment sales commission. The Plaintiff shall prepare an employment contract and directly employ the sales salesperson and bear the employer’s responsibility as prescribed by the Labor-Related Act, such as wages incidental thereto. Such matters are factors that may deny the employee status.

3. However, in this case, the issue of whether the plaintiffs are workers under the Labor Standards Act is based on the substance of the provision of labor rather than the phrase of the consignment sales contract, and thus, we look at it.

A. According to the reasoning of the judgment of the original court and the records, the following facts are revealed. 1) Defendant concluded a sales contract with the original Defendant’s sales store operating company to sell clothing products, and dispatched the Defendant’s regular employees to the sales store, but thereafter, concluded a sales contract with the Defendant’s sales store as in 199, and concluded a sales contract with the Defendant’s employees to sell the Defendant’s goods, and had the Defendant sell the sales store and sell the goods. Accordingly, unlike those who were employed as full-time employees of the Defendant shop installed within the department store and forced to submit a written resignation and enter into a sales contract with the Defendant’s employees, the Plaintiffs maintained only the status of sales manager under the sales contract from the beginning, or maintained the Defendant’s employees to the extent that they did not use the Plaintiff’s monthly sales commission fees by periodically confirming the Plaintiff’s work hours and retirement hours, and the Plaintiffs did not participate in the sales contract to the extent that they did not exercise their right to impose disciplinary action against the Plaintiffs.

B. In full view of the following circumstances revealed in the above facts, it cannot be deemed that the Plaintiffs’ wage constitutes a worker under the Labor Standards Act who provided labor to the Defendant in a subordinate relationship with the Defendant for the purpose of wage B. (1) The elements that the Plaintiff could affirm the employee status specified in the consignment contract entered into with the Defendant are similar to the agent who is an independent business entity by the Defendant, and thus, it cannot be deemed as an important matter to determine whether the Plaintiff constitutes an employee. (2) The Defendant did not manage the Plaintiffs’ good position, and the Plaintiff’s subordinate and exclusive nature against the Defendant, such as that the Plaintiff is able to have the sales agent work on behalf of the Plaintiff to a certain extent on behalf of the Plaintiff. (3) The Plaintiff did not err in the misapprehension of the legal doctrine regarding the Plaintiff’s wage and operating expenses on his own account, since it is necessary to pay a fee without the upper or lower limit according to the sales performance, and thus, it is difficult to determine the Plaintiff’s fee as an employee’s independent business entity in violation of the principle of logic and experience.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Tae-tae

Justices Kim Jae-hyung

Justices Min You-sook of the District Court

Justices Lee Dong-won