Seoul Administrative Court 2009Guhap53403 ( August 13, 2010)

National High Court Decision 2007west3288 (Law No. 9.15, 2009)

A private teaching institute instructor shall not be determined whether or not a small or medium enterprise is included in its workers.

On the ground that instructors have completed their business registration and paid income tax as business income under the Income Tax Act, and have not been subject to specific and direct direction and supervision on the details of the lecture except regulations on the lecture time and place of the lecture, it is necessary to determine whether they are subject to evaluation of the largest shareholder by determining whether they are subject to evaluation of the number of workers.

2010Nu28672 Revocation of Disposition of Imposition of Gift Tax

○ Kim

○ Head of tax office

Seoul Administrative Court Decision 2009Guhap53403 decided August 13, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's decision that the disposition of imposition of KRW 1,268,451,440 against the plaintiff on May 3, 2007 is revoked.

2. Purport of appeal

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, except for the addition of the judgment on new arguments by the defendant in the trial court, and thus, it is identical to the judgment of the first instance court. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Additional matters to be determined;

A. The defendant's assertion

The defendant asserts that, in the case of the △ Institute that the plaintiff accepted the shares, the department and the position of each of its employees are determined, and in addition to the basic instructor fee, the class management performance-based bonus or position allowance has been paid and the advance payment has been recognized, all of these instructors shall be deemed full-time workers. Therefore, although the number of its employees and instructors is not less than 50 and it cannot be deemed small and medium enterprises, it is erroneous that △ Institute failed to conduct the verification of the largest shareholder on the premise that it is a small and medium enterprise in assessing the

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Criteria for determining small and medium enterprises

In full view of the provisions of Article 63(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007), Article 53(6) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008), Article 167-8 of the Enforcement Decree of the Income Tax Act, Article 2(1) of the Framework Act on Small and Medium Enterprises, and Article 3 subparag. 1 [Attachment Table 1] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21368 of Mar. 25, 2009), and Article 3 subparag. 6 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 20621 of Feb. 22, 2008) are companies with the purpose of "the representative director, Kim Jong-si, as its largest shareholder, etc., providing education services through operation of Y.

On the other hand, whether a contract constitutes a worker under the Labor Standards Act shall be determined depending 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 employment. Whether a dependent relationship exists should be determined by comprehensively taking into account the following factors: (a) the employer determines the content of work; (b) the employer is subject to the rules of employment or personnel regulations; (c) the employer designates working hours and working places; (d) the employer is bound by the employer; (e) whether the employer is able to operate his/her business on his/her own account; (e) whether the employer owns equipment, raw materials or tools for work; (e) whether the employer voluntarily owns equipment, materials or tools for work; and (e) whether the employer has a risk, such as the creation of profits and losses through the provision of labor; (e) whether the nature of remuneration was the subject of the labor itself; and (e) whether the continued relationship to provide labor and the exclusive nature to the employer; and (e) whether the social security system is recognized as an employee (iii).

(2) Determination on the instant case

In light of the above facts, Gap evidence 18-2, Gap's 19, 20-21, Gap's 22, 24-2, Gap's 25, and Eul's 26-2, the following facts are considered comprehensively considering the overall purport of oral proceedings, i.e., KimB's ○○ School; Lee ○○○○ School; Lee Dold's Dol's Dol's Dol's Dol's Dol's Dol's Dol's Dol's Dol's Dol's 20-6; Eul's Dol's 20-6 Dol's Dol's Dol's Dol's 8-6 Dol's Dol's Dol's Dol's Dol's Dol's Dol's 5-day Dol's Dol's Dol's Dol's 2.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.