[1] The requirements to recognize the representative meeting of apartment occupants as an employer under the Labor Standards Act for the management office that has entered into an employment contract with the apartment management business operator

[2] The case holding that a council of occupants' representatives who concluded an entrustment management contract with an apartment management business entity may not be deemed as an employer of the management office employees, where the council of occupants' representatives was involved in personnel management and duties of the management office employees and did not specifically and individually direct and supervise the management office in the course of performing their duties

[1] If the head of the management office, who is an agent of the apartment management business owner who entered into the above consignment management contract with the representative council of apartment occupants, concluded an employment contract with the employees of the management office, such employees shall be deemed to be the employees of the apartment management business owner. Thus, if the representative council of apartment occupants, which only entered into the above consignment management contract with the apartment management business owner, is recognized as an employer who is obligated to pay wages to the employees, the employment contract that the employees entered into with the head of the management office, as the other party, is not only in the form and nominal form, but also in the subordinate relationship with the representative council of occupants, and the employees provide labor to them in fact, and the representative council of occupants, as there are circumstances such as payment of wages in return, it shall be deemed that an implied employment contract has been

[2] The case holding that although the representative meeting of apartment occupants was involved in the recruitment and promotion of some employees beyond the scope of the supervisory authority based on the status under the above consignment management contract entered into with the apartment management business operator, or the payment level of wages, welfare expenses, etc., which are working conditions of the employees of the management office, was determined independently and erroneously, it cannot be said that the management business operator or the head of the management office who was represented by him/her, all of his/her personnel rights, such as appointment and dismissal of employees, disciplinary action, placement, etc., and the right to command duties, and the labor contract entered into with such employees cannot be deemed to be a formal one, and that the resident representative meeting cannot be deemed to be an employer who is in a labor contract with the management office in the course of performing his/her duties, in cases where the management office or the head of the management office who was represented by him/her, determined the duties of the employees

[1] Articles 14 and 15 of the Labor Standards Act, Articles 38 and 39 of the Housing Construction Promotion Act, Articles 3, 10, and 15 of the Decree on the Management of Multi-Family Housing / [2] Articles 14, 15 of the Labor Standards Act, Articles 38, 39 of the Housing Construction Promotion Act, Articles 3, 10, and 15 of the Decree on the Management of Multi-Family Housing

[1] Supreme Court Decision 72Da895 decided Nov. 14, 1972 (No. 20-3, 104) Supreme Court Decision 96Nu1504 decided Jun. 11, 1996 (Gong199Ha, 2211)

Appellant 1 et al. and 177 others (Attorneys Lee Jae-appellee et al., Counsel for the plaintiff-appellant)

○○ apartment council of occupants’ representatives (Law Firmcheon-gu, Attorneys Yu-min et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 98Ra305 dated January 11, 1999

All reappeals are dismissed.

The grounds of reappeal are examined.

1. Upon examining the contents of the above consignment management contract concluded between the respondent and the non-applicant Boan Co., Ltd. (hereinafter referred to as the "non-applicant") on June 30, 1994, the above consignment management contract provides that the respondent basically entrusts the management of the ○○ apartment located in Gangnam-gu Seoul ( Address omitted) to the non-applicant, who is a housing management operator, and the non-applicant shall perform the entrusted affairs with his/her responsibility at the cost of the tenant of the above apartment, and the non-applicant shall be paid 30 won as remuneration. Thus, although the contract provides that the non-applicant shall obtain the approval of the respondent for the organization and the number of employees of the apartment management organization established by the non-applicant as specified in the ground for re-appeal, the appointment of each employee, the payment of the employee's benefits, the imposition of management expenses, and all expenses, and the appointment of the management office shall immediately comply with the request of the respondent for dismissal of the employee and report matters concerning the execution and management of the expenses each month, the contract of the above consignment management office shall not be deemed as the form of the above management office.

The decision of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the content and interpretation of contract, and therefore there is no ground for reappeal.

2. Even if the respondent took part in the appointment of the head of the management office of the apartment of this case as the grounds for re-appeal as to the appointment of the head of the management office of this case, the head of the management office is a representative of the non-applicant who is authorized to exercise overall control over the affairs of the management office of the apartment of this case as employees belonging to the non-applicant, and the applicants who are employees who entered into a labor contract with the head of the management office and were employed and worked in the management office of this case are the non-applicant for the non-applicant. Thus, in order for the applicants to be recognized as the employer who is obligated to pay wages, the labor contract entered into with the head of the management office as the other party for the non-applicant is nothing more than the form and name of the contract, and the respondent's labor contract entered into with the head of the management office as the other party for the non-applicant, and the respondent should provide his labor in a de facto subordinate relationship with the respondent, and the respondent should not be evaluated as having been formed at least implied labor contract relations between the applicant and the respondent (see, 72Da.

According to the records, the respondent is able to decide on the recruitment of the new head of the technical office or the recruitment of new staff, the head of the management division and the head of the security service team or the promotion of the head of the security service team. In the interview for the recruitment of some new staff and the promotion of the head of the security service team, the representative and executive officers of the respondent participated in the employment of some new staff, the representative of the respondent has given official commendation at the end of the year, and the representative of the respondent has given official commendation, and the management office approves the documents concerning the employment of new staff, appointment of commissioned staff members, handling of the dismissed, internal personnel management, payment of wages and heavy food expenses, food expenses, and the payment of retirement allowances, such as expenses, etc., reports on the management office's execution and management plan, business plan, work performance, etc., and notify the head of the management office of the decision on the monthly installment, and the respondent has determined the amount of wages, welfare expenses, etc. of employees as the other party

However, in full view of Articles 3(1), 10(6), and 15(1) of the Decree on Management of Multi-Family Housing, a management business operator shall collect expenses necessary for the management of employees' wages, such as retirement allowances, office expenses, clothes expenses, etc. from occupants as determined by the council of occupants' representatives. In addition, in addition to multi-family housing subject to management, incidental facilities, welfare facilities, and safety management, matters determined by the council of occupants' representatives should be executed. According to the above entrustment management contract of this case, the respondent did not make a separate agreement on the limit or the amount of expenses necessary for the entrusted management, and the entrusted management expenses to the employees' office, and the non-applicant's office's office's office's office's office's office's office's business registration expenses should be paid to the employees' employees' compensation expenses for each month. In addition, according to the records, the appointment of new employees' wages and other expenses for the management of the employees' office's office and the head of the management office's office's appointment of new employees' compensation expenses shall not be determined by the respondent.

In full view of all the above circumstances, the respondent may participate in the recruitment and promotion of some employees beyond the scope of the supervisory authority based on the status of the above consignment management contract, or supervise the management office's performance of duties, and it is recognized that the level of payment of wages, welfare expenses, etc., which are working conditions of the applicants, has been independently determined. However, it cannot be said that the non-applicant or the head of the management office who has been represented by the non-applicantation or the head of the management office excludes all the personnel rights and the right to command duties, such as appointment and dismissal, disciplinary action, placement, etc., of the applicants as parties to the labor contract, and the labor contract entered into with the applicants is merely a formal one. Moreover, the respondent cannot be deemed to have determined the details of the applicant's duties and conducted specific and individual command and supervision in the course

Therefore, the decision of the court below that the respondent cannot be deemed to have actually directed and supervised the applicants as long as the respondent is deemed the applicant's employer is justifiable. However, as alleged in the grounds of reappeal, it is erroneous that the court below recognized that collective agreement was concluded every year, and concluded that all of the respondent's measures as seen above constituted exercise of supervisory authority. However, it cannot be viewed as an error of law affecting the order of the court below, and there is no other error of law such as misunderstanding of legal principles as to labor relations as alleged in the grounds of reappeal. Thus, the ground of reappeal

3. Therefore, all reappeals are dismissed. It is so decided as per Disposition with the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)