A. The meaning of an employee under Article 14 of the Labor Standards Act

(b) The case holding that the contractor of a service contract who has formally had the external appearance of a labor contract falls under a worker prescribed in the above Act;

A. If, regardless of the form of employment contract, contract or employment contract under the Civil Act, an employee provides an employer with work in a subordinate relationship with the substance of employment, it constitutes an employee under Article 14 of the Labor Standards Act.

(b) The case holding that the contractor of a service contract who has formally had the external appearance of a labor contract falls under a worker prescribed in the above Act;

Article 14 of the Labor Standards Act

Supreme Court Decision 87Do604 Decided May 26, 1987 (Gong1987, 1112) (Gong1987, 1142) 86Meu2920 Decided June 9, 1987 (Gong1987, 1142) (Gong1989, 1222)

Plaintiff 1 and 3 others, Counsel for the plaintiff-appellant-appellee and one other, Counsel for the plaintiff-appellant-appellee)

Korea

Seoul High Court Decision 90Na45283 delivered on November 30, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the ground of appeal by Defendant Litigation Performers

The court below accepted the judgment of the court of first instance and acknowledged that the service contract concluded between the plaintiffs and the defendant had the appearance of labor contract, although the plaintiffs provided labor to the defendant under the contract, the plaintiffs provided labor within a certain working place and working hours under the defendant's specific, individual direction and supervision, and the plaintiffs are performing separate duties according to the defendant's order, in addition to the duties stipulated in the service contract, and determined that the defendant is liable to pay retirement allowances to the plaintiffs who provided subordinate labor under the employment contract which is subject to the Labor Standards Act.

If, regardless of the form of employment contract or employment contract under the Civil Code, a worker provides an employer with his work in a subordinate relationship with the actual situation of his work, it shall be deemed a worker under Article 14 of the Labor Standards Act. Such a worker can seek a payment of retirement allowance under Article 28 of the Labor Standards Act, which provides the retirement allowance system.

According to the above facts duly admitted by the court below, since it is clear that the plaintiffs provide labor in a subordinate relationship, they constitute workers under Article 14 of the Labor Standards Act, and therefore, the defendant is obligated to pay the above retirement allowance to the plaintiffs.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the Labor Standards Act, such as theory of lawsuit, or mistake of facts.

Therefore, the appeal is 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 Kim Sang-won (Presiding Justice)