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(영문) 부산지방법원 2015.11.27 2015노1547
근로자퇴직급여보장법위반
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The lower court found the Defendant guilty of the facts charged in the instant case, but in light of the fact that the Defendant confirmed the time of commuting to and from work of F, G, and H (hereinafter “F, etc.”) with the aim of paying a certain amount to the business operator during business hours, the Defendant did not have any disadvantage such as disciplinary action, etc. on the ground of lag, early retirement, absence from work, etc., the Defendant’s use of telephone equipment provided by F, etc. by the company is inevitable due to the characteristics of the mail order business, namely, the use of telephone equipment provided by F, etc. by the company is inevitable in light of the fact that there is no fixed wage, and the F, etc. merely received remuneration based on its sales performance, and thus, it cannot be deemed an employee under the Labor Standards Act, and the Defendant did not have any obligation to pay retirement allowances to F, etc.

Therefore, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of judgment.

B. Not on the basis of unreasonable sentencing

Even if the court below's punishment (2.7 million won) is too unreasonable.

2. Determination:

A. Determination of misunderstanding of facts or misunderstanding of legal principles as to whether an employee is a worker under the Labor Standards Act shall be made by whether the form of a contract is an employment contract or a contract for employment, and whether an employee provided labor in a subordinate relationship with the employer for the purpose of wages in substance. Whether a subordinate relationship exists as mentioned above shall 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 service (which shall be governed by the rules of employment, etc., and

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