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

[2] Whether an employment contract under the Employment Security Act is identical with an employment contract under the Labor Standards Act (affirmative)

[1] Determination of whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the contract form is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether such a subordinate relationship exists should be made by comprehensively taking into account whether the contents of the work are determined by the employer, whether the employer is subject to specific individual direction and supervision by the employer, whether the work hours and the place of work are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker has the characteristic of the work by employing a third party, whether the ownership of equipment, raw materials and the work apparatus, etc., whether the basic salary or fixed wage has the characteristic of the work itself, whether the wage is determined, whether the wage has the characteristic of the work, whether the wage has the characteristic of the work, whether the wage has the exclusive nature of the provision and the degree and status of the worker, whether the worker status is recognized by other statutes regarding social security system, and the social and economic conditions of both parties.

[2] Article 19(1) of the former Employment Security Act (amended by Act No. 5453, Dec. 13, 1997) provides that a person who intends to conduct domestic fee-charging job placement services shall obtain permission from the Mayor/Do Governor, and Article 4 subparag. 2 of the same Act provides that "job placement" refers to mediating the formation of employment contracts between job offerers and job offerers upon receiving an application for job offering or job seeking. Here, the "employment contract" or "labor contract under the Labor Standards Act" refers to both job offerers and job offerers on the premise of the dependence of the provision of labor. In light of the purpose of the Employment Security Act is to promote the employment security of workers, employment contract under the Employment Security Act is also the same as that under the Labor Standards Act.

[1] Articles 14 and 17 of the Labor Standards Act / [2] Articles 4 subparagraph 2 and 19 (1) of the former Employment Security Act (amended by Act No. 5453, Dec. 13, 1997); Articles 14 and 17 of the Labor Standards Act

[1] Supreme Court Decision 94Da22859 delivered on December 9, 1994 (Gong1995Sang, 448), Supreme Court Decision 94Do2122 delivered on June 30, 1995 (Gong1995Ha, 2685), Supreme Court Decision 98Du9219 delivered on January 28, 200 (Gong200Sang, 598)

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorneys Choi Promotion and 3 others

Seoul District Court Decision 2000No968 delivered on October 18, 2000

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of Defendant 1’s supplemental appellate brief not timely filed).

1. As to Defendant 1’s ground of appeal

Examining the evidence admitted by the court below in light of the records, the facts constituting the crime of fraud in the judgment against the defendant can be sufficiently recognized, and there is no error of law by misunderstanding facts in violation of the rules of evidence or by misunderstanding the legal principles as to the criminal intent of fraud. The grounds for appeal pointing this out are not acceptable.

In addition, in this case where the defendant was sentenced to a sentence of less than 10 years of imprisonment, the reason that the sentencing of the court below is excessive is not a legitimate ground for appeal.

2. As to the Prosecutor’s Grounds of Appeal

Determination of whether a worker is a worker under the Labor Standards Act, regardless of whether the form of a contract is an employment contract under the Civil Act or a contract for work, shall be made based on whether the worker provided work in a subordinate relationship with the employer for the purpose of wages at the business or workplace. Determination of whether such a subordinate relationship exists shall be made by the employer, whether the contents of the work are determined by the employer and shall be subject to the rules of employment or the rules of employment, and shall be subject to specific direction and supervision by the employer during the performance of work, whether the employer is designated working hours and place and is detained by the employer, whether the worker is replaced by the work, such as providing a third party with the work by proxy, whether the characteristic of the remuneration is the object of the work, whether the basic wage or fixed wage is determined, whether the wage has the characteristic of the work itself, whether the wage is determined, whether the continuous provision of the labor relationship and the exclusive nature and degree of the employer, whether the status of the worker is recognized under other Acts and subordinate statutes regarding the social security system, and the economic conditions of the parties concerned (see, e.g., Supreme Court Decision 294.294.

In addition, Article 19(1) of the former Employment Security Act (amended by Act No. 5453, Dec. 13, 1997) provides that a person who intends to conduct domestic fee-charging job placement services shall obtain permission from the Mayor/Do Governor, and Article 4 subparag. 2 of the same Act provides that "job placement" refers to arranging the formation of employment contracts between job offerers and job seekers upon receiving an application from a job offering or job seeking. Here, the "employment contract" or "labor contract" under the Labor Standards Act is not different in terms of both the premise of the dependence of the provision of labor, and the purpose of the Employment Security Act is to promote the employment security of workers. In light of the above, employment contract under the Employment Security Act is also the same as that under the Labor Standards Act.

The court below found that the contract was entered into between Defendant 1 and the victims in the form of a vehicle lease contract which is not an employment contract or an employment contract, and received KRW 2 million per month in the vehicle rent, the victims are temporary owners and drivers who registered a vehicle registered under the name of the branch company, the victims bear all the expenses related to the operation of trucks, such as vehicle entrance fees, various insurance premiums, automobile car taxes, log charters, parts, etc. except engine errors, fuel fees, and road usage fees, and the victims are able to substitute, work as substitute, and the victims are not able to work, and there is no agreement on payment of bonuses, and there is no wage or medical insurance premium deduction, and in light of these facts, it is difficult to view the contract relationship between Defendant 1 and the victims as an employment contract under the Labor Standards Act or employment contract under the Employment Security Act, and found Defendant 1 not guilty of the violation of the Labor Standards Act against Defendant 1 and the violation of the Employment Security Act against demotion. In light of all the aforementioned legal principles and records, the judgment below is justified in light of the aforementioned legal principles and records.

The grounds of appeal disputing this issue are rejected.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)