[1] The standard for determining whether it constitutes a temporary placement for workers to which the Act on the Protection, etc. of Temporary Agency Workers applies where workers are employed and let others work for others

[2] Whether an implied agreement exists between the user company and the temporary agency worker that the user company bears the duty to protect the temporary agency worker or to protect safety in relation to the temporary agency worker (affirmative in principle), and whether the user company may claim damages against the user company against the user company (affirmative in principle), and whether the extinctive prescription provision of Article 766(1) of the Civil Act applies to the claim for damages caused by the user company's non-performance of the duty (negative)

[1] In light of the purpose and contents of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “the Act on the Protection, etc. of Temporary Agency Workers”), the issue of whether the legal relation constitutes a temporary agency worker to which the Act on the Protection, etc. of Temporary Agency Workers applies, rather than a contract name or form attached by the parties, should be determined based on the substance of the relevant employment relationship, such as whether the purpose or object of the contract is specific, expertise, and technical nature, whether the contract party has the substance of the enterprise, whether the user company has the right to command and order in the performance of the contract, and whether the user company holds

[2] In full view of the nature and contents of the relationship of work, direction, and order in temporary agency workers, it is reasonable to view that a temporary work agency allows a user company to dispatch a worker employed by it to its workplace and to bear the duty of protection or safety consideration for the temporary agency worker himself/herself in relation to the temporary agency work, and a temporary work agency enters into a temporary agency contract with the user company on such premise that the user company bears the duty of protection or safety consideration for the temporary agency worker, and the temporary agency worker also provides the user company with labor on the premise that the user company bears the above duty of protection or safety consideration for the temporary agency worker. Therefore, in the case of temporary agency worker dispatch relationship, there is an implied agreement between the user company and the temporary agency worker that the user company bears the duty of protection or safety consideration for the temporary agency worker, barring any special circumstance, and therefore, even if the user company did not directly conclude the employment or labor contract with the user company, the user company is not liable for damages due to the user company's breach of the duty of protection or safety consideration based on such implied agreement.

[1] Article 2 subparag. 1 and 6 of the Act on the Protection, etc. of Temporary Agency Workers / [2] Article 35(1) and (2) of the Act on the Protection, etc. of Temporary Agency Workers, Articles 5(1) and 23 of the Occupational Safety and Health Act, Articles 390 and 766(1) of the Civil Act

[1] Supreme Court Decision 2011Du7076 Decided February 23, 2012

Plaintiff (Attorney Yoon Jong-dae, Counsel for the plaintiff-appellant)

Peace Industry Co., Ltd and one other (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2010Na9475 decided June 29, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendant Peace Industry Co., Ltd. (hereinafter “Defendant Peace Industry”)

A. As to the grounds of appeal Nos. 1 and 2

(1) Under the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Act on the Protection, etc. of Temporary Agency Workers”) stipulating the employment conditions of temporary agency workers and the duty of the temporary work agency on the working conditions, etc. of temporary agency workers under the Act on the Protection, etc. of Temporary Agency Workers, the term “worker dispatch” means that the temporary work agency employs a worker and has him/her engage in work for the user company under the direction and order of the user company in accordance with the terms of the contract on temporary agency workers while maintaining the employment relationship (Article 2 subparag. 1); and the term “worker temporary agency contract” means a contract under which the temporary work agency and the user company enter into

In light of the aforementioned purpose and content of the Act on the Protection of Temporary Agency Workers, if an employee is employed to work for others, whether the legal relation constitutes a temporary agency worker to which the Act on the Protection of Temporary Agency Workers applies should be determined based on the substance of labor relations, rather than on the name or form of the contract attached by the parties concerned, such as the specific nature, expertise, and technical nature of the purpose or object of the contract, whether the party to the contract has the substance of the enterprise, whether the user company has the business independence, and whether the user company has the right to command and order in the course of performing the contract (see Supreme Court Decision 2011Du7076, Feb. 23, 2012, etc.

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ① Defendant New Postal Co., Ltd. (hereinafter “Defendant New Postal Co., Ltd.”) was established around Apr. 28, 2004 for the purpose of temporary work business, etc. and its establishment terminated around Mar. 1, 2006, and on Nov. 9, 2005, the manufacturer and seller of automobile parts, etc. employed the Plaintiff to provide labor at the place of work of the Defendant Peace Industry. ② Accordingly, the Plaintiff was under the direction and supervision of the Defendant Peace Industry by attending the place of work as provided by the Defendant Peace Industry under the direction and supervision of the Defendant Peace Industry, and was engaged in the manufacturing of parts produced by the Defendant Peace Industry. ③ On Nov. 15, 2005, the Plaintiff did not remove the accident from the right hand in the way of removing the accident and did not cause any injury to the Plaintiff.

Examining the above circumstances in light of the legal principles as seen earlier, the labor relationship between the Plaintiff and the Defendants falls under the worker dispatch relationship to which the Act on the Protection of Temporary Agency Workers applies, and even if the aforementioned labor relationship between the Defendants refers to a contract agreement and the relevant contract is prepared, it does not change.

In the same purport, the court below determined that the plaintiff was subject to the accident of this case while dispatched to the defendant peace industry in accordance with the worker dispatch contract between the defendants, and accordingly rejected the claim of the defendant peace industry that the labor relationship of this case constitutes pure contract, and there is no violation of law of free evaluation of evidence in violation of logical and empirical rules, as otherwise alleged in the ground of appeal.

B. Regarding ground of appeal No. 3

(1) An employer is an incidental duty under the good faith principle accompanying an employment or labor contract, and is obligated to take necessary measures such as improving physical environment so that an employee does not harm life, body, or health in the course of providing labor, and is liable to compensate for damages caused by nonperformance of such duty (see, e.g., Supreme Court Decision 97Da12082, Feb. 23, 199). In addition, where the act of violating the employer’s duty of protection or safety consideration falls under the requirements of tort, the employer is liable to compensate for damages caused by nonperformance of such duty (see, e.g., Supreme Court Decision 96Da53086, Apr. 25, 1997).

On the other hand, in relation to temporary placement of workers, a temporary work agency employs workers and concludes a temporary placement contract with a user company while maintaining the employment relationship, and the temporary agency worker serves for the user company under the direction and order of the user company. As such, risks to life, body, and health that the temporary agency worker faces while on temporary placement work arise in the area controlled and managed by the user company. Article 35(1) of the Protection of Dispatched Workers Act provides that "the user company shall be deemed an employer under Article 2 subparag. 3 of the Occupational Safety and Health Act for temporary placement work of the temporary agency worker, and the same Act shall apply to temporary placement work of the temporary agency worker" in the main sentence of Article 35(1) of the Protection of Dispatched Workers Act, and imposes, in principle, the duty of preventing industrial accidents and maintaining the safety, health, and safety, and improvement, etc. of workers under the Occupational Safety and Health Act in relation to temporary placement of workers, thereby allowing the user company to be subject to criminal or administrative sanctions prescribed in the Occupational Safety and Health Act, etc.

In full view of the nature and contents of the relationship of work, direction, and order at the temporary placement of workers as above, it is reasonable to view that a user company, who has hired a temporary work agency, is also obliged to directly provide the user company with the duty of protection or safety consideration for the temporary agency worker in relation to the temporary placement work. On the premise that the temporary work agency enters into a temporary placement contract with the user company, and the user company also provides the user company with the above duty of protection or safety consideration for the temporary agency worker. Therefore, in the temporary placement relationship between the user company and the temporary agency worker, there is an implied agreement with the user company on the fact that the user company bears the duty of protection or safety consideration for the temporary agency worker, barring any special circumstance, and therefore, even if the user company did not directly conclude the employment or labor contract with the user company, the user company cannot claim damages for the violation of the duty of protection or safety consideration for the user company based on the aforementioned implied agreement.

(2) According to the contract on the temporary placement of workers with Defendant New York, the Defendant Peace Industry was dispatched to his workplace and directed and supervised the Plaintiff as the user company, and did not take necessary measures to protect the Plaintiff’s life and body, and to ensure safety, such as the implementation of safety education and the confirmation of the breakdown of parts while engaging in the business of manufacturing parts. This resulted in the instant accident, as seen earlier, that the Plaintiff suffered damages as indicated in its reasoning.

Examining these circumstances in light of the above legal principles, as the defendant peace industry was dispatched the plaintiff to the workplace in accordance with the contract on temporary placement of workers with the defendant Shin-Neen, and was directed and supervised as the user company and engaged in his work for himself, and the plaintiff accepted it and provided his work for the defendant peace industry, there was an implied agreement between the plaintiff and the defendant peace industry on the fact that the defendant peace industry bears the duty of direct protection or safety consideration to the plaintiff in relation to the plaintiff's temporary placement work, so the defendant peace industry is liable for compensation for the damages suffered by the plaintiff due to the violation of the duty of protection or safety consideration under the above contract regarding the plaintiff's temporary placement work.

In the same purport, the court below recognized the defendant peace industry's liability for damages due to the plaintiff's default, and accordingly rejected the defense of the defendant peace industry claiming the completion of the extinctive prescription under Article 766 (1) of the Civil Act, and there is no error of law by misunderstanding the nature of the worker dispatch contract and the establishment of the duty of safety consideration, as otherwise alleged in the ground of appeal.

2. As to the ground of appeal by Defendant New York

The fact-finding or the ratio of limitation on liability, such as comparative negligence, in a damage compensation case due to tort or nonperformance, belongs to the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2009Da38544, Jan. 14, 2010, etc.).

Examining the reasoning of the lower judgment and the evidence duly admitted by the lower court in light of the aforementioned legal doctrine, the lower court’s determination of the Defendants’ liability limitation ratio of damages by 70% cannot be considerably unreasonable in light of the principle of equity, in full view of the circumstances surrounding the occurrence of the instant accident, etc.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Kim Shin (Presiding Justice)