In a case where Article 125 subparag. 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act clearly provides that the delivery service may be requested from a single Kwikset service provider and the delivery service provider may use the smartphone display case of another delivery service provider, in light of the fact that Article 125 subparag. 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act clearly provides that the delivery service provider may not deny the “exclusiveity” of the delivery center solely on the ground that the delivery service provider is likely to use another delivery service provider’s smartphone display case, but it is possible to recognize the “exclusiveity” of a person in special type of employment, which is the requirements for a person in special type of employment, and thus, it is erroneous in the misapprehension of legal principles that it does not constitute a person in special type of employment.

Article 125(1) of the Industrial Accident Compensation Insurance Act; Article 125 subparag. 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (Amended by Presidential Decree No. 27050, Mar. 22, 2016)

Plaintiff (Law Firm Love, Attorneys Soh Chang-soo et al., Counsel for plaintiff-appellant)

Korea Labor Welfare Corporation

Seoul High Court Decision 2017Nu69566 decided November 28, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 125(1) of the Industrial Accident Compensation Insurance Act provides that, regardless of the form of a contract, regardless of the form of a contract, an employee needs to be protected from occupational accidents as the Labor Standards Act, which does not apply to the employee’s provision of labor similar to that of the employee, and that “a person who regularly provides labor necessary for operation and lives with remuneration and does not use others in providing labor (hereinafter “person in special type of employment”) who is engaged in the type of occupation prescribed by Presidential Decree (hereinafter “person in special type of employment”) shall be deemed as a business subject to the Industrial Accident Compensation Insurance Act. Article 125 subparag. 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 27050, Mar. 22, 2016; hereinafter the same) provides that “a person in special type of employment as one of the persons in special type of employment, who mainly receives a request from a one Kwikset Service provider in accordance with the standards set by the Minister of Employment and Labor.”

Accordingly, the Ministry of Employment and Labor’s criteria for the exclusive nature of Kwikset Service Workers (Notice of Ministry of Employment and Labor No. 2012-40 of April 11, 2012) provides that “a person who mainly engages in delivery service upon commission of one Kwikset Service provider” refers to a person who belongs to one Kwikset Service provider and carries out delivery service only of such company” (Article 1) or “a person who actually carries out delivery service of another company while carrying out delivery service in part of his/her business, and falls under any of the following subparagraphs (Article 2).” In addition, each subparagraph of paragraph (2) provides that “a person who actually carries out delivery service upon commission of one Kwikset Service provider” (Article 2012-40 of the Ministry of Employment and Labor’s notification of the Ministry of Employment and Labor). “A person who actually carries out delivery service upon commission of one Kwikset Service provider” (Article 201-1).

2. The court below found the deceased's death during the course of performing delivery services requested through the smartphone clock at the "○○○○○ (△△△△△)" (hereinafter "the workplace of this case") operated by the plaintiff, and determined that, based on the above facts, the deceased is deemed to be a "selective carrier" under the subdivision of the Korean Standard Occupational Classification Table, but it did not constitute a person in special type of employment on the following grounds.

A. The delivery source, including the Deceased, becomes the delivery source by registering the ID granted by the Plaintiff in smartphone display, and the delivery source does not have the obligation to require additional conditions or to bear as its delivery source in addition to the charge of the usage fee.

B. There is no agreement between the delivery service provider and the Plaintiff on the part of the Plaintiff, which does not use any other person when providing the Plaintiff with labor at all times, or that the delivery service of the instant place of business is conducted preferentially.

C. Although the Deceased did not actually perform the delivery service at a place other than the instant place of business during the course of performing the delivery service, there is no limitation on the delivery services performed by the delivery center of another delivery company using the smartphone application of the other delivery company.

3. However, in light of the contents and purport of the above provisions, we cannot agree with the judgment of the court below for the following reasons.

A. Article 125 Subparag. 6 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act explicitly stipulates that the delivery service is performed upon request from one Kwikset service provider. Therefore, the delivery service provider cannot deny the delivery service provider’s “defence” solely on the ground that the delivery service provider is likely to use another delivery company’s smartphone display.

B. In addition, the Deceased did not actually perform the delivery service, etc. at a place other than the instant place of business. Therefore, the fact that the nature of the work is an abstract possibility of performing the delivery service, etc. at another place of business at the option of the Deceased does not interfere with the recognition of the Deceased’s “exploitity”.

C. The purport of the Industrial Accident Compensation Insurance Act, which provides special provisions for the protection of persons in special types of employment, is to protect the relevant employees when there is a need to protect employees from occupational accidents. However, the standard presented by the lower court in determining the exclusive nature of persons in special types of employment is not significantly different from the standard for determining the employee in accordance with the Labor Standards Act. In so doing, the purport of the aforementioned Act will be disregarded

D. Meanwhile, as amended on March 31, 2017, the “Kwikset Service Engineer’s Exclusive Status Standards (Notice No. 2017-21 of the Ministry of Employment and Labor) adds “a person who obtains an excessive income from all income or engages in an excessive business hour from his/her registered company” based on the basis for recognition of exclusive ownership. The reason for the amendment can be deemed to be to clarify the interpretation of exclusive ownership in accordance with the purport of the aforementioned Act and subordinate statutes.

4. Nevertheless, the lower court determined that the deceased did not constitute a person in a special type of employment solely on the grounds as seen earlier. In so determining, the lower court erred by misapprehending the legal doctrine on the exclusive nature of a person in a special type of employment and failing to exhaust all necessary deliberations, thereby adversely affecting

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)