[1] Criteria for determining whether an employee is a worker under the Labor Standards Act

[2] The case holding that outside production personnel of the Korea Broadcasting System Korea Broadcasting System belong to workers under the Labor Standards Act

[3] In the case where a daily employed worker or a daily employed worker continues without suspending his/her employment relationship, whether a person shall regard him/her as a regular employee and pay a retirement allowance by calculating the continuous period of employment as the number of consecutive years of employment (affirmative), and whether a person must work for at least 25 days of average monthly employment in order to recognize the continuity of employment (negative)

[4] The validity of an agreement to pay a retirement allowance including it on a daily basis (negative) and the validity of an agreement to waive the right to claim a retirement allowance (negative)

[1] In determining whether a contract constitutes a worker under the Labor Standards Act, regardless of whether the contract is an employment contract under the Civil Act or a contract for work, and whether a worker has provided labor in a subordinate relationship with an employer for the purpose of wages in substance. Determination of whether a dependent relationship here exists shall be made by comprehensively taking into account whether the contents of work are determined by an employer and are subject to rules of employment, service regulations, personnel regulations, etc., whether the employer is specifically and directly directed and supervised by the employer in the course of performance of work, whether the worker is designated as working hours and place and is detained by the employer, whether the worker has a substitute nature of work, whether the worker has a characteristic of work by employing a third party, whether the basic salary or fixed wage has a characteristic of work itself, whether the wage has a characteristic of work, whether the wage has the continuity and exclusive nature of work provision, whether the status of an employee is recognized as a worker under other Acts and subordinate statutes such as Acts and subordinate statutes on social security system, and the economic, social, etc. of both parties.

[2] The case holding that, in full view of the fact that the external producers who provide labor in the Korea Broadcasting System Korea Broadcasting System (hereinafter referred to as the "Korea Broadcasting System") are determined by the annual investment in charge of the program and are bound exclusively by the place and time schedule of the program production, and that the Deputy Director of the Korea Planning Group of Dlama (hereinafter referred to as the "Central Broadcasting System") approve the external producers' work log prepared by external producers as external producers and manages their labor by placing external producers according to the program production situation, and the remuneration received by external producers is in accordance with the Korea Broadcasting System production cost provision, not based on the work performance or work performance, but by the method calculated by adding overtime allowances to the basic daily wage, and has the nature of the subject of the work itself, it constitutes workers who provided labor in a subordinate relationship with the Korea Broadcasting System for the purpose of wages

[3] Even if a daily worker is a formally employed worker, if the worker continues to be employed without suspending the worker relationship, it shall be deemed a regular worker, and the employer shall pay the corresponding retirement allowance by calculating the continuous period of employment corresponding to the employee under the rules of employment and remuneration regulations by the number of consecutive work years, and it shall not be always recognized as the full-time, continuous, and dependent nature of the worker even if the worker has worked for at least 25 days on the average of the month.

[4] The specific claim for the payment of retirement allowances is a requirement for the termination of a labor relationship, and there is no room for the obligation to pay retirement allowances even if the payment of a certain amount of money is made every day as retirement allowances under Article 34 of the Labor Standards Act, but it is not effective as retirement allowances payment under Article 34 of the Labor Standards Act, and the agreement to waive a claim for retirement allowances that occurs at the time of the final retirement is null and void as it violates Article 34(1) of the Labor

[1] Article 14 of the Labor Standards Act / [2] Article 14 of the Labor Standards Act / [3] Article 34 of the Labor Standards Act / [4] Article 34

[1] Supreme Court Decision 95Da20348 delivered on April 26, 1996 (Gong1996Sang, 1690), Supreme Court Decision 97Da17575 delivered on December 26, 1997 (Gong1998Sang, 396), Supreme Court Decision 98Du9219 delivered on January 28, 200 (Gong200Sang, 598), Supreme Court Decision 2001Do2778 delivered on August 21, 200 (Gong201Ha, 2125 delivered on September 14, 197), Supreme Court Decision 209Da9798 delivered on September 26, 197 (Gong1976, 19352), Supreme Court Decision 97Da197989 delivered on September 14, 197 (Gong1979, 1977Da197989, Jul. 16, 19797)

Plaintiff 1 and six others (Law Firm Governing Law Office, Attorney Jeon Young-sik, Counsel for the plaintiff-appellant)

Korea Broadcasting System (Law Firm Sami General Law Office, Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na47909 delivered on April 29, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Summary of the judgment of the court below

The lower court determined that the Plaintiffs were obligated to take part in the production and management work of Defendant 1’s labor union for a certain period of time, and that the Plaintiffs were obligated to take part in the production and management work of Defendant 1’s labor union or recorded personnel (S.C.: hereinafter collectively referred to as “outside production personnel”), and that the Plaintiffs were obligated to take part in the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work of the production and management work.

2. As to ground of appeal No. 1

In determining whether a contract constitutes an employee under the Labor Standards Act, regardless of whether the contract is an employment contract under the Civil Act or a contract for work, and whether an employee provides work in a subordinate relationship with an employer for the purpose of wages in substance. Determination of whether a subordinate relationship exists, the contents of work are determined by the employer, the rules of employment, service regulations, personnel regulations, etc., whether the employer is subject to specific direction and supervision in the process of work, whether the worker is designated working hours and work place by the employer, whether the worker is subject to replacement of work, such as provision of equipment, raw materials, work place, etc., whether the worker has an independent nature of work itself, whether the remuneration has a basic wage or fixed wage, and whether the worker is subject to collection of labor income tax, and whether the worker is subject to the production and supervision of the production and work site, and whether the production and supervision of the production and work site is recognized by other Acts and subordinate statutes including the continuous provision of labor and subordinate statutes and the economic and social nature of the two parties, as well as the production and supervision of the production and work site.

3. Regarding ground of appeal No. 2

Even if a daily employed worker is formally employed, if the daily relationship has not been interrupted, it shall be deemed a regular employee, and an employer shall pay the corresponding retirement allowance by calculating the continuous period of employment corresponding to an employee under the rules of employment and remuneration regulations by the number of consecutive years of employment (see Supreme Court en banc Decision 83Meu657, Aug. 19, 1986). It does not necessarily mean that the full-time, continuous, and dependent nature of a worker should be recognized only when the worker has worked for at least 25 days on an average (see Supreme Court Decision 93Da26168, Jul. 11, 1995).

According to the records, the monthly average working days of the plaintiffs are about 25 days, and they have a blank period until they participate in the programs after completing the programs in which the plaintiffs participated, but the period does not exceed 15 days, and the above period is recognized as a waiting period or a rest period for re-defence to participate in the following programs. Thus, the plaintiffs can recognize the continuity of work for the period before they begin work in the defendant Corporation, not only for the period in which they participated in the production of an individual program but also for the period in which they finally completed work. Therefore, the judgment of the court below is just, and there is no error of misconception of facts or misapprehension of legal principles as to the continuity of work as

4. As to ground of appeal No. 3

A specific claim for payment of a retirement allowance is a requirement for the termination of a labor relationship, and there is no room for an obligation to pay a retirement allowance, so long as the labor contract remains in existence, it is not effective as a payment of a retirement allowance under Article 34 of the Labor Standards Act (see Supreme Court Decision 96Da24699 delivered on March 24, 1998). In addition, the agreement to waive a claim for a retirement allowance that occurs at the time of a final retirement violates Article 34(1) of the Labor Standards Act and thus null and void (see Supreme Court Decision 97Da49732 delivered on March 27, 1998).

The decision of the court below which rejected the defendant's assertion that the plaintiffs should be paid only the remuneration under the provision on the payment of the expenses for production of broadcast and the defendant corporation, and the retirement allowances should be deemed to have agreed not to receive it separately is justifiable in rejecting the defendant's assertion on the ground that there is no evidence to prove that there was such an agreement between the plaintiffs and the defendant corporation. In so doing,

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

Justices Song Jin-hun (Presiding Justice)