[1] Requirements for an affiliate organization of a corporation to be recognized as a non-corporate group separate from a corporation

[2] Criteria for determining whether a person is an employer or employee who is obligated to pay wages and retirement allowances under the Labor Standards Act

[1] Article 31 of the Civil Act / [2] Articles 2, 23, and 34 of the Labor Standards Act

[1] Supreme Court Decision 4291Da59337 delivered on April 11, 2003 (Gong2003Sang, 1154) / [2] Supreme Court Decision 97Da56235 delivered on February 9, 199 (Gong1999Sang, 451) Supreme Court Decision 2004Da8333 delivered on March 30, 2007 (Gong2007Sang, 614)

Plaintiff

Defendant Incorporated Corporation (Law Firm Barun Law, Attorneys Choi Young-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na47792 Delivered on December 29, 2006

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Even if a corporation’s affiliate organization is subject to the corporation’s occupational guidance and supervision, if a decision-making body and executive body are organized based on the rules, a decision-making body and executive body are held in accordance with the principle of majority majority, and if the organization itself continues to exist regardless of the membership, withdrawal, etc. of its members, such affiliate organization may be deemed to be an independent non-corporate body separate from the corporation. As long as the entity has the substance of an association, norms governing its organization and activities do not lose association as it does not mean that the entity is an independent non-corporate body (see, e.g., Supreme Court Decisions 4291Sang467, Feb. 25, 1960; 2002Da59337, Apr. 11, 2003).

Meanwhile, regardless of the form of a contract, whether a worker is a worker under the Labor Standards Act shall be determined based on whether the worker provided labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether the contents of work are determined by the employer, whether the employer is subject to the rules of employment, service regulations, personnel regulations, etc., and whether the employer is designated working hours and place of work and is detained by the employer, whether the remuneration is in the possession of equipment, raw materials, work tools, etc., whether the wage has the characteristic of work itself as an object of work, whether the basic salary or fixed wage is determined, whether the wage has the characteristic of work itself, whether the wage is withheld from the wage tax, whether the status of the worker is recognized as a worker under other Acts and subordinate statutes, such as the continuation of the labor provision relationship, degree and degree of exclusive employment to the employer, whether the economic and social conditions of the two parties, and whether the employer bears the duty to pay wages and retirement allowances, etc. In addition, determination of whether a certain worker is an employer under the duty to pay wages should be made based on the type of contract or related laws.

2. The lower court: (a) based on evidence adopted by the lower court; (b) based on the above ○○○○○○○○○○ Council’s position, the Defendant Corporation established the Central Federation in Seoul; (c) held several branches and branches nationwide; and (d) operated the business with membership fees paid by the branches; and (c) enacted and implemented the Regulations on the Operation and Management of Branch Offices; (d) the “Rules on the Management of Membership Fees and Membership Fees”; and (e) the “Rules on the Disciplinary Action against the Officers of the Central Committee” (hereinafter “○○○○ Council”) established by the 1st executive officers and employees of the 5th executive officers and employees of the 1st executive officers and employees of the 4th executive officers and employees of the 5th executive officers and employees of the 1st executive officers and employees of the 3rd executive officers and employees of the 4th executive officers and employees of the 1st executive officers and employees of the 3rd executive officers and employees of the 1st executive officers and employees of the 3rd executive officers and employees of the 5th executive officers’s.

3. However, in light of the above legal principles, ○○○ Branch is an independent non-corporate body separate from the defendant corporation, and furthermore, it is reasonable to view that a substantial labor relationship has been established between the plaintiff and the plaintiff as a person who pays wages, etc. in return for the plaintiff's work while directing and supervising the plaintiff in specific and individual manner. In accordance with the personnel regulations, the defendant corporation appointed the plaintiff as the secretary of the ○○○○ Branch Office, but issued the dismissal disposition in this case pursuant to the employee disciplinary regulations, and then again issued the plaintiff as the principal secretary of the ○○○○ Branch Office upon the plaintiff's request, and the plaintiff as the head of the secretariat dispatched the plaintiff to the head of the ○○○○ Branch Office, who was against the plaintiff as the party to the application for unfair dismissal, and the ground for overall control over the branch office's affairs upon the order of the head of the branch office. However, the court below erred by misapprehending the legal principles on the wages and supervision of the defendant corporation's branch office and the branch office's employees.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Si-hwan (Presiding Justice)