In a case where Eul's bereaved family claims for compensation for bereaved families and funeral expenses as Eul's bereaved family members died due to a traffic accident while Eul, who was traveling a vehicle insurance service towing business and towing business, was moved to towing the accident vehicle, and the Korea Workers' Compensation and Welfare Service rendered a disposition of refusal on the ground that Eul is not an employee under the Labor Standards Act, the case holding that Eul's disposition is unlawful since Eul's employee provided labor to Gap company in a subordinate relationship with the purpose of wage.

In a case where Eul's bereaved family claims for compensation for bereaved families and funeral expenses as Eul's bereaved family members died due to a traffic accident while waiting for a towing vehicle, which is moving for the towing business, Eul's life while driving for the towing business, and Eul's bereaved family claims for compensation for bereaved family and funeral expenses, and Eul's ground that it is an individual business operator as Eul's branch owner and is not an employee under the Labor Standards Act, the case holding that Gap's disposition is unlawful since Eul's act constitutes a worker who provided labor in a subordinate relationship for the purpose of wages, upon receiving a request from an insurance company, an individual driver, etc. for towing of a motor vehicle, Gap's company provides the vehicle to Eul's branch owner, including Eul, through the party on duty, etc., with pre-delivery of the motor vehicle, and allowed the branch owner to tow the motor vehicle, and

Article 5 subparag. 1 and 2 of the Industrial Accident Compensation Insurance Act, Article 2(1)1 of the Labor Standards Act

Plaintiff (Law Firm Doz., Attorneys Park Jong-jin, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

August 21, 2015

1. On July 2, 2014, the Defendant’s disposition of bereaved family benefits and funeral expense against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The mid-term Special Co., Ltd. (hereinafter “non-party company”) is a company established on September 28, 2006 and engaged in vehicle insurance services towing business, etc. in the area of Gwangju-do. The corporate register of the non-party company is registered as the representative director on November 16, 201, but the non-party 2 (hereinafter “non-party 1’s husband”) is the actual manager.

B. From October 2012, the Plaintiff’s husband Nonparty 3 (hereinafter “the deceased”) had been engaged in towing of vehicles ordered by the Nonparty Company using towing vehicles owned and managed by the Nonparty Company. However, on February 19, 2013, the Plaintiff, who owned (registration number omitted) in the name of Dlim Special Cargo Co., Ltd., was placed in the non-party company. Since around that time, the Plaintiff’s husband (hereinafter “the deceased”) was towing by using the said racker.

C. On July 13, 2013, in order to tow the accident vehicle at around 06:45, the Deceased driven the said vehicle and moved to the site of the accident, and then, in the vicinity of the Domari-distance located in the middle line of the city of Gwangju, the Deceased died due to the cardiopulmonary damage in accordance with the decrison of the Dara cry at the center line of the city of Gwangju, and during the transfer of the vehicle to a nearby hospital, the deceased died due to the decris damage in accordance with the decris of the decris.

D. On April 2014, the Plaintiff filed a claim with the Defendant for the payment of bereaved family’s compensation and funeral expenses, while the deceased’s death was caused by an occupational accident. However, on July 2, 2014, the Defendant rendered the instant disposition rejecting the payment of bereaved family’s compensation and funeral expenses on the ground that the deceased is a temporary owner operator and is not recognized as an employee under the Labor Standards Act.

E. The Plaintiff appealed and filed a request for examination to the Defendant, but the Plaintiff was dismissed on October 14, 2014, and filed a request for reexamination with the Industrial Accident Compensation Insurance Reexamination Committee, but was dismissed again on December 22, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-4, Eul evidence 1-5 (including those with more than one number; hereinafter the same shall apply), Gap evidence 8 video, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

While the deceased is a branch owner, he provided labor under the specific direction and supervision of the business owner, and died due to a traffic accident while moving to tow the vehicle that requested the non-party company to tow on the day of death. Therefore, the deceased’s death constitutes an occupational accident, and the disposition of this case issued on a different premise is unlawful.

2) The defendant's counterclaim

The deceased, an independent business operator, was employed by the non-party company, and was paid remuneration according to the results of towing from the non-party company, and did not receive wages from the non-party company. Therefore, the deceased does not constitute a worker under the Labor Standards Act. Therefore, the deceased’s death cannot be deemed as an occupational accident.

B. Relevant statutes

본문내 포함된 표 ▣ 산업재해보상보험법 제5조(정의) 이 법에서 사용하는 용어의 뜻은 다음과 같다. 1. “업무상의 재해”란 업무상의 사유에 따른 근로자의 부상·질병·장해 또는 사망을 말한다. 2. “근로자”·“임금”·“평균임금”·“통상임금”이란 각각「근로기준법」에 따른 “근로자”·“임금”·“평균임금”·“통상임금”을 말한다. 다만,「근로기준법」에 따라 “임금” 또는 “평균임금”을 결정하기 어렵다고 인정되면 고용노동부장관이 정하여 고시하는 금액을 해당 “임금” 또는 “평균임금”으로 한다. 제6조(적용 범위) 이 법은 근로자를 사용하는 모든 사업 또는 사업장(이하 “사업”이라 한다)에 적용한다. 다만, 위험률·규모 및 장소 등을 고려하여 대통령령으로 정하는 사업에 대하여는 이 법을 적용하지 아니한다. ▣ 근로기준법 제2조(정의) ① 이 법에서 사용하는 용어의 뜻은 다음과 같다. 1. “근로자”란 직업의 종류와 관계없이 임금을 목적으로 사업이나 사업장에 근로를 제공하는 자를 말한다.

C. Key issue of the instant case

Whether the deceased constitutes a worker under the Labor Standards Act

D. The judgment of this Court

1) Whether the Industrial Accident Compensation Insurance Act is a worker under the Labor Standards Act, which is subject to protection, should be determined depending on whether the form of a contract is an employment contract or a subordinate relationship with an employer for the purpose of wages. Whether an employee is subordinate to the above mentioned above should be determined by the employer’s contents of work, and whether the employer has considerable direction and supervision in the course of performing work under the rules of employment or employment regulations, etc., whether the employee is subject to detention, whether the employer is able to operate his/her business on his/her own account, whether the employee owns equipment, raw materials, working tools, etc., or has a third party employed to act on behalf of the employer, etc., whether the employer has a superior nature of work, whether the nature of remuneration was determined by the basic salary or fixed wage, whether the employment relationship was exclusive for the employer and its degree, and whether the employee is recognized as an employee under the laws and regulations on the social security system, etc. (see, e.g., Supreme Court Decision 2007Du4781, Jul. 27, 20197).

2) In full view of the following facts and circumstances in light of the health class, Gap 2, 5, 6, and 10 evidence, Eul 2 and 7 evidence (including those with abnormal numbers; hereinafter the same shall apply), Eul 6 and 8 evidence, the images of Gap 7-9, and the whole purport of arguments in Gap 12 evidence as to this case, the following facts and circumstances can be acknowledged, and parts of evidence Nos. 6 and 8 as to this case are not believed to be stated in the evidence Nos. 6 and 8. In full view of the above circumstances, it is reasonable to view that the deceased constitutes a worker who provided labor to the non-party company in a subordinate relationship for the purpose of wages.

① Upon receipt of a request for towing a vehicle from an insurance company, an individual driver, etc., the non-party company guide the owner of the land including the Deceased, etc. (hereinafter referred to as the “owner”) in advance through the worker on duty, and let the owner of the land tow the vehicle, and the owner of the land towed the vehicle in accordance with the direction. The non-party company imposed an amount equivalent to ten times the profit accrued when the owner of the land towed the vehicle due to the failure to contact with the owner of the vehicle without any electrical contact. The non-party company imposed an amount equivalent to ten times the profit accrued when the owner of the land towed the vehicle.

(2) If it is delayed for a local owner to arrive at the towing point due to the overlap of towing instructions, etc., the owner of the land may urge the local owner to conduct prompt towing by electric power, and impose a penalty of KRW 50,000 on the local owner, if the towing is particularly delayed.

③ Even after towing a vehicle, a branch owner was not paid the costs of direct towing by an insurance company and an individual driver, etc., and was paid by the non-party company the remainder of the towing costs paid by the non-party company to the non-party company after deducting certain fees from the towing costs paid by the non-party company, and was paid once a month.

④ In total five working areas (this case’s company office, beginning month, difficulty rock, Gwangju metropolitan border, and Austria), the local owner engaged in circular work on a five-day basis on a five-day basis, one-day daily work, two-day work at night, and two-day work at night, and two-day work at night work at night, and two-day work at night work at the designated office during the said working hours to contact the towing vehicle owner at night. During the said working hours, the non-party company conducted an abrupt to check whether the local owner would work at the designated office. The non-party company, in principle, imposed a penalty of KRW 2-30,000 per ten minutes if the local owner is dismissed, and the non-party company imposed a certain penalty even if the local owner is absent without permission. The non-party company did not obtain prior approval from the employer if the local owner deviates from the designated place of work at night, and did not obtain prior approval from the employer.

⑤ A branch owner notified the Non-Party Company of the use of the leave in advance by stating the date of leave in the Bodboard board kept in the place of business owned by the Non-Party Company. If a branch owner’s leave overlaps, the Non-Party granted the position of “the head of the team” from the non-Party Company adjusted the date of leave.

6. The non-party company made the non-party company advertise the non-party company by integrating the external painting of towing vehicles, attaching to the towing vehicles a tag indicating the company's trade name and telephone number, sending mobile phone text messages or attaching advertisements, and the non-party company did not follow the direction of the non-party company.

7. In the non-party company, the non-party company imposed a penalty amount equivalent to ten times the purchase cost of the flag, on the flag's wearing the same flag and not wearing the flag.

8) The non-party company mobilized the non-party owners every two to three months, and requested the non-party company to inform the non-party company of the occurrence of a traffic accident for one week, and provided information to the non-party company. The non-party company ordered the non-party owner not to use leave during the period of the above business promotion activity, and the non-party company did not comply with this.

9) The non-party company repeatedly instructed the non-party company's prospective customers who requested towing through the insurance company to leave a letter expressing the towing services of the non-party company on the website of the relevant insurance company.

10,000 won was deducted when the non-party company filed a complaint against the towing service of the land owner from the customer requesting towing, while paying the fee to the relevant land owner.

1) In the non-party company, the non-party company held one-half times every year a year a meeting in which the non-party borrowers participate.

(12) The Deceased used the towing vehicle owned by the Nonparty Company from October 2012 to February 18, 2013 in the course of towing, and used the towing vehicle from February 19, 2013 to his/her actual possession (registration number omitted). In the process of replacing the said vehicle, there was no change in the status of the Deceased Company during the replacement of the said vehicle.

(13) It seems that the case of allowing a third party to tow the vehicle by proxy without towing the vehicle directly by the land owner.

(14) It seems that the owner of the land actually used the towing vehicle for towing activities requested by the non-party company other than the non-party company.

(15) It is also deemed that there is no case in which a local owner of land tows by being directly towed without going through the non-party company.

In the absence of special circumstances, the non-party company allowed the non-party company to tow the vehicle to a maintenance office or a motor vehicle scrapping place designated by the non-party company, and the non-party owner also followed the non-party owner.

Although the basic pay or fixed pay is not guaranteed to the employed by the employed borrower, there was a difference between the employed borrower and the employed borrower’s fee paid by the employed borrower according to the towing performance, it is difficult to view that the nature as the wage, which is the remuneration for labor, is always denied as it can be evaluated that the amount of performance-based bonus is also evaluated in terms

Although the business owner is an extension of 9 years above the deceased, the business owner used the name such as “Y” and “p” when the deceased was on the part of the deceased, and the deceased used the remaining end of the business owner.

3) 그리고 앞서 든 증거에 변론 전체의 취지를 종합하면, ㉠ 지입차주들은 소외 회사로부터 그들의 견인 실적에 따라 세금 등을 공제한 수수료를 지급받아 왔을 뿐 기본급 명목으로는 어떠한 금원도 고정적으로 지급받지 않았던 점, ㉡ 지입차주들은 지입차량을 소유하며 할부금, 자동차세, 보험료, 교통위반범칙금, 유류비 등의 제세공과금과 차량유지비를 스스로 부담한 점, ㉢ 소외 회사가 지입차주들에 대하여 건강보험, 국민연금, 고용보험, 산업재해보상보험 가입신고를 하거나 그 보험료를 납부하지 아니하였던 점(망인은 2012. 2. 1.부터 2013. 5. 31.까지 소외 회사가 아닌 주식회사 해누리건설을 사업장으로 하는 고용보험의 피보험자로 등록되어 있었다), ㉣ 소외 회사는 지입차주들에게 수수료를 지급함에 있어 근로소득세가 아니라 사업소득세(또는 사업자등록을 마치지 아니한 지입차주들에 대하여는 사업소득세에 상당하는 인적 용역비 명목의 금원)를 원천징수한 점, ㉤ 지입차주들은 소외 회사에 매월 사무실 사용비로 약 15만 원, 견인 장소 안내에 필요한 무전기 사용비용으로 약 7~9만 원, 식비로 13만 원을 납부하여 온 점, ㉥ 지입차주들이 야유회 참석 비용 일부(1인당 10~20만 원)를 부담한 점, ㉦ 소외 회사에서 지입차주들에 대하여 출퇴근 시간이나 휴가일수 등을 정한 별도의 취업규칙을 두지 아니한 점, ㉧ 일부 지입차주들은 지입차량을 운전하여 출퇴근하였던 점, ㉨ 소외 회사가 차량 견인 요청을 많이 받을수록 지입차주들의 견인 횟수도 증가하여 더 많은 수익 창출이 가능해지기 때문에 지입차주들로서도 견인 요청에 신속히 응하기 위하여 일정한 장소에 대기하고, 소외 회사를 광고할 유인이 있었던 점 등을 인정할 수 있으나, 위 ㉠ 내지 ㉥의 점은 사용자인 소외 회사가 경제적으로 우월한 지위에서 최소한의 비용을 부담하면서 근로자를 사용하기 위하여 임의로 정할 수 있는 사항들이고, 소외 회사에서 지입차주인 견인기사 이외의 다른 형태의 근로자들을 고용하지 않았고, 따라서 견인기사 이외의 다른 형태의 근로자들에 대하여는 취업규칙을 적용하면서 견인기사들에 대하여만 유독 취업규칙을 적용하지 않은 것으로 보이지는 않고, 취업규칙의 존재가 근로관계 성립의 필요조건이라고 볼 수도 없는 점, 소외 회사에서 통근 차량을 제공하였다면 일부 지입차주들도 굳이 지입차량을 운전하여 출퇴근할 이유가 없었을 것이고, 소외 회사는 비용 절감 차원에서 지입차주들에게 통근 차량을 제공하지 아니한 것으로 보이는 점 등에 비추어 보면, 위 ㉦ 내지 ㉨의 점만으로는 2)항에서 인정한 망인의 근로자성을 뒤집기에 부족하다.

4) Therefore, the deceased is deemed to constitute a worker of the non-party company, and the instant disposition taken on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Kim Byung-soo (Presiding Judge) et al.;