Plaintiff 1 and six others (Law Firm Shin & Shin, Attorneys Choi Im-soo, Counsel for the plaintiff-appellant)

Brazil Capital and World Loan Co., Ltd. (Law Firm Square, Attorneys Lee Young-young et al., Counsel for the defendant-appellant)

September 20, 2018

Seoul Central District Court Decision 2015Da5305682 Decided August 17, 2017

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below is revoked, and the plaintiffs' claim corresponding to the revoked part is dismissed

The defendant shall pay to the plaintiffs 6% interest per annum from each day to October 30, 2018 and 20% interest per annum from the next day to the day of complete payment with respect to each of the corresponding amounts and each of the above amounts stated in the separate sheet for calculation of retirement allowances.

2. The defendant's remaining appeals against the plaintiffs are dismissed.

3. 30% of the total litigation costs shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from each day to the day of full payment on each of the amounts stated in the separate sheet for calculation of retirement pay in the separate sheet "request amount" and each of the above amounts.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. The basic facts and the arguments of the Parties

The reasoning for this part of this Court is as follows, and this part of the reasoning of the judgment of the court of first instance is identical to that of each corresponding part of the reasoning of the judgment of the court of first instance, so it is acceptable in accordance with Article 420 of the Civil Procedure

○ The following is added between the third-party 11 and 12 of the first instance judgment.

"On the other hand, the plaintiffs were concurrently holding office in another company during some of the periods of employment in the defendant company, and each of the following incomes, such as the following table (the part of the period of indication of sound processing, which accounts for at least 50% when compared to the income of the defendant company for the same period of time as the income of the defendant company).

본문내 포함된 표 순번 원고 근무기간 겸직연도 다른 근무처 다른 근무처 소득 피고 회사 소득 1 1 2004. 9. 1. ~ 2013. 7. 30. 2004년 삼성카드(주) 27,323,000원 34,502,124원 2007년 저스트포유(주) 683,069원 44,071,764원 2009년 혜만(개인사업자) 8,499,000원 29,530,747원 2011년 에이아이에이인터내셔널리미티드 1,636,124원 73,019,035원 2012년 ㈜채권추심전문엘씨대부 2,384,590원 52,823,446원 2012년 삼성카드㈜ 1,983,000원 2013년 ㈜채권추심전문엘씨대부 13,386,490원 29,908,150원 2013년 에스엠신용정보㈜ 9,142,749원 2 2 2008. 10. 13. ~ 2014. 7. 30. 2008년 라이프케어 36,679,123원 16,198,082원 2013년 ㈜고려신용정보 9,734,610원 32,866,251원(10~12월 합계 6,583,643원) 한빛대부(2013. 10. 4.부터) 7,728,029원 2014년 한빛대부 77,308,756원 10,832,565원 3 3 2009. 9. 16. ~ 2015. 1. 31. 2009년 ㈜미래신용정보 16,769,403원 2,216,969원 2013년 한빛대부(2013. 12. 1.부터) 1,670,869원 31,007,159원(12월 4,565,056원) 2014년 한빛대부 26,739,879원 8,189,618원 4 4 2012. 1. 16. ~ 2015. 5. 30. 2014년 제일호더블류홀딩스자산대부㈜ 169,110원 42,887,314원(11, 12월 합계 5,620,298원) 한빛대부(2014. 11. 3.부터) 5,781,143원 2015년 한빛대부 48,359,816원 20,072,698원 5 5 2009. 7. 15. ~ 2013. 12. 30. 2013년 ㈜다니엘워커 11,126,594원 15,945,417원 6 6 2010. 1. 26. ~ 2014. 9. 13. 2010년 ㈜다산인베스트 321,770원 33,636,894원 2012년 ㈜비케이자산관리대부 22,573,664원 26,168,304원 2013년 ㈜비케이자산관리대부 27,867,330원 14,890,510원 2014년경 ㈜비케이자산관리대부 71,011,645원 59,021,120원 ㈜다산인베스트 15,500,000원 한빛대부(2013. 11. 1.부터) 20,562,510원 7 7 2007. 8. 1. ~ 2013. 12. 30. 2007년 ㈜중앙신용정보 11,629,226원 13,818,219원 2013년 ㈜애드민 6,178,027원 11,032,037원

At the bottom of the fifth part of the judgment of the court of first instance, the third part of "the ground for recognition of 1-4, 6-8" was written in 1-2, 1-2, 1-1 through 4, 6-8, 11-1 through 8, and the result of the court of first instance ordering the National Tax Service to submit tax information to the National Tax Service by the court of first instance, and the result of the fact-finding on the light asset management loan of the court of first instance and the court of first instance (hereinafter referred to as "one light loan"), and the purport of the entire pleadings."

2. Determination

A. As to whether the plaintiffs constitute workers under the Labor Standards Act

The reasons stated in this part are as follows, and this part of the reasoning of the judgment of the court of first instance is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is acceptable in accordance with the main sentence of Article 4

○○, Nos. 7, 14, and 15 of the judgment of the first instance, “This method is deemed to have been applied to the Plaintiffs, even if the period of service overlaps with that of Nonparty 1 and Nonparty 1, in light of the fact that the period of service overlaps with that of the Plaintiffs and Nonparty 1, it may be deemed that the aforementioned method of service is also applied to the Plaintiffs. However, as seen earlier, it is difficult to deem that the above method of service has the same binding force as the previous period for the Plaintiffs while the Plaintiffs occupy a portion above 50% when compared with the income of the Defendant company during the same period of time.”

In the judgment of the court of first instance, the plaintiffs could not be free from such instructions, in the light of the fact that the service period of the plaintiffs and the non-party 1 overlaps with that of the plaintiff and the non-party 1, the plaintiffs could not be free from such instructions. However, as seen earlier, the plaintiffs did not hold concurrent offices in other companies, and further, during the period in which the income from concurrent offices accounts for not less than 50% compared with the income of the defendant company during the same period, it is difficult to view that the above specific work instruction was applied to the plaintiffs as the same content and robbery as the previous period."

In light of the fact that the service period of Nonparty 1 and Nonparty 1 overlaps with that of the Plaintiff, the management of these contents may be deemed to have been carried out as it is against the Plaintiffs. However, as seen earlier, it is difficult to deem that such management of the content was carried out as it was identical to that of the previous period while the income of the Defendant was compared with that of the Defendant company during the period of 50% or more when compared with that of the Defendant company.”

○○, the first instance judgment of 11, No. 16, and No. 17, stated “I seem to have continued within the period of service of the Plaintiffs in the above-mentioned basic facts” to read “The Plaintiffs, as seen earlier during the period of service of the Plaintiffs, have been holding concurrent office in other companies, and further, during the remainder of the period excluding the period of not less than 50% when compared with the income of the Defendant Company during the same period.”

○○ Decision 12, 13, 14, 8, 12, 13, 14, and 8, shall be followed as follows.

B) Judgment on the defendant's argument

The defendant asserts that even if the plaintiffs were employed by the defendant, since November 2012, the non-party 2, who filed a retirement allowance claim lawsuit against the defendant, had concerns over disadvantageous action against the defendant in the above lawsuit, and thus, the defendant did not direct, supervise, and manage the debt collection center's business affairs. Thus, the plaintiffs from the above point of time should not be regarded as the defendant's employee at least. Even if the plaintiffs were employed as the defendant's employee even after the above point of time, they cannot be viewed as the defendant's employee at least from the time when the plaintiffs were employed as another company'

Therefore, as seen earlier, it is difficult to view that there was a difference in the terms of November 2012 at the time when the Defendant asserts that the matters such as the Defendant Company’s “business process method through the Sanet,” “specific business instruction,” “management of recovery performance,” and “management of work attitude,” as seen earlier. The fact that there is the period of concurrent office held by the Plaintiffs in other companies alone does not necessarily mean that the subsidiary nature of the claims collection business that the Plaintiffs offered to the Defendant is immediately denied from the time when the Plaintiff started to obtain income from other work places than the Defendant Company as such (On the other hand, it is difficult to view that Korea Light Loan was immediately denied from the time when the Plaintiff started to work at the place of business other than the Defendant Company’s company (On the other hand, Plaintiff 2, 3, 4, and 6’s commuting time for inquiry of fact at 9:0 am and 6:0 am. However, the above reply was not related to the period of work worked by the above Plaintiffs as a previous commission contract, but it appears to work

However, in light of the following facts: (a) the Plaintiffs’ period of 50% or more compared with the income earned from the Defendant Company during the same period (the above period of work experience; (b) the above period of work experience falls under the last year of the period in which the remaining Plaintiffs except Plaintiff 6 work for the Defendant Company; and (c) the period of work experience for the Plaintiff 2, 3, 4, and 6 appears to have been settled by December 2015, falling under the commissioned contract period of work; and (d) the above period of work overlaps with the above period of work experience, it is difficult to view that the Plaintiffs were exclusively in charge of the Defendant’s debt collection agent; and (d) in light of the above period of work experience and concurrent office period of the Plaintiffs’ income size, it is reasonable to view that the Plaintiffs’ above period of work experience through the Defendant Company’s “work experience method through the Defendant Company”, “specific business instruction”, “collection performance management performance”, and the remaining period of work experience as the Defendant’s command and supervision is limited to the above period of work.

The period between September 1, 2004 and July 30, 201, 204, and the period between September 1, 2004 to September 1, 201, to December 22, 2012, 2008 to October 13, 2013, 208 to October 30, 2013 to October 30, 2013, 206. 3.6. 16. 16. 3. 20 to September 3, 201, 207 to September 3, 201, 2015, from September 3, 201, 201 to September 3, 201, 206 to November 16, 201, 200 to November 31, 2015.

Therefore, the defendant's above assertion is justified only for the remainder except the above period of recognition of worker status.

B. Regarding the plaintiffs' retirement allowance claim

1) Defendant’s duty to pay retirement allowances

As seen earlier, the plaintiffs are employers who provided their labor to the defendant who is the employer for the purpose of wages, and have lost their status as workers while performing claims collection business for more than one year. Therefore, the defendant is obligated to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act to the plaintiffs for the period of recognition of the status as workers.

2) Scope of retirement pay

A) Calculation of average wages per day;

In addition to the purport of the entire arguments in the statement in subparagraph 11-1 through 4, 6-8 of the evidence Nos. 11-1, the whole amount of fees, etc. received by the plaintiffs during the three-month period prior to the loss of worker status can be recognized as the same fact as each corresponding amount.

On the other hand, the defendant asserts that the above amount received by the plaintiffs should be excluded from the total amount of wages paid within the average wage calculation period, since the installment interest collection rewards, interest collection rewards, and transportation expenses cannot be seen as compensation for labor. However, although the payment method differs depending on whether the debt collection agency collects the interest in installments or collects it in lump sum, it is reasonable to see that all of them are the piece of performance bonus for which the debt collection agency is liable to pay to the defendant according to the result of collection in direct relation to the provision of labor as the "interest collection". It is reasonable to see that they have the nature of the payment for labor. ② The transportation expenses were uniformly paid according to the number of days of attendance for the debt collection to facilitate the provision of labor, and therefore, it is difficult to see that the defendant merely compensates the actual expenses in consideration of the payment obligation without the payment obligation, which is also included in the scope of wages subject to labor.

Therefore, if the average wage per day for each plaintiff is calculated according to the calculation formula (i.e., the amount received for the calculation period ¡À91 or 92 days in total for the calculation period; hereinafter the same shall apply), the amount is as stated in the "average wage per day" in the annexed retirement allowance calculation sheet.

B)the calculation of retirement allowances;

As seen earlier, the period of recognition of worker status for each plaintiff is the same as the corresponding period stated in the attached Table 1 for the calculation of worker status" (this refers to the plaintiff 2 from October 1, 2008; the plaintiff 3 from September 1, 2009; the plaintiff 4 from December 1, 201; the plaintiff 5 from January 1, 2009; and the plaintiff 6 from January 1, 2010 to the defendant 6 from the above judgment of the court of first instance as the date of conclusion of the first entrustment contract; the plaintiff 2 from October 13, 2008 to September 16, 2009 to the above part of the average wage for the plaintiff 2 from September 16, 201 to June 16, 201 to the above part of the average wage for the plaintiff 3 from the above judgment of the court of first instance; the above part of the plaintiff 1 to the plaintiff 3's average wage should be calculated separately for the above reasons.

3) Sub-decisions

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 6% per annum from the day after October 30, 2018 under the Commercial Act and 20% per annum of the Labor Standards Act from the day on which the plaintiff's claim was made, as the plaintiff's claim was made with respect to each of the relevant amounts and each of the above amounts as stated in the annexed retirement allowance calculation table "the amount cited in this court" as retirement allowance calculation table to the plaintiff (as seen in the above, the number of plaintiffs 1, 2, 3, and 5 is more than the amount cited in the first instance court, but the period of recognition of worker status for all of the plaintiffs including the above plaintiffs has been reduced than the first instance court. In light of the circumstances where the period of recognition of worker status for all of the plaintiffs including the above plaintiffs has been reduced by the first instance court, it is reasonable to determine the reasons for excluding damages for delay under Article 37 (2) of the Labor Standards Act and Article 18 (3) of the Enforcement Decree of the same Act).

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed for lack of reasonable grounds. Since part of the judgment of the court of first instance different conclusions are unfair, the defendant's appeal is partially accepted, and the plaintiffs' claims corresponding to the revoked part are revoked, and the defendant's remaining appeals against the plaintiffs are dismissed for lack of reasonable grounds.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)