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

[2] The case affirming the judgment of the court below that deemed the single arms of the taxi company as an employee under the Labor Standards Act

[3] The meaning of workers of the same kind subject to collective agreement under Article 35 of the Labor Union and Labor Relations Adjustment Act

[4] The case reversing the judgment of the court below that the collective agreement entered into between the taxi company and the trade union is also applicable to the general arms company for the same purpose as the regular engineer, on the ground that there is room to view that the above general arms company is not qualified to join the trade union in light of the provisions of the collective agreement

[1] In determining whether a worker is a worker under the Labor Standards Act, whether the contract is an employment contract under the Civil Act or a contract, regardless of the form of the contract, must be determined depending on whether the worker provided labor to the employer in a subordinate relationship with the business or workplace for the purpose of wages.

[2] The case affirming the judgment of the court below which regarded the above weapons as an employee under the Labor Standards Act in light of the contents of the employment contract concluded between the taxi company and the daily weapons company, the work environment of the above weapons company, etc.

[3] Article 35 of the Trade Union and Labor Relations Adjustment Act provides that a collective agreement shall apply to workers of the same kind who are employed in the same business or workplace when the number of workers of the same kind who are ordinarily employed in the same business or workplace is subject to one collective agreement. Accordingly, the term "worker of the same kind" refers to a person who is expected to be subject to the collective agreement pursuant to the provisions of the collective agreement in question, while a person who is not qualified as a union member pursuant to the provisions of the collective agreement in question is not expected to be subject to the collective agreement, and thus, it cannot be said

[4] The case reversing the judgment of the court below that the collective agreement entered into between the taxi company and the trade union is also applicable to the same as the regular engineer, and on the ground that there is room to view that the above large arms company is not qualified to join the trade union in light of the provisions of the collective agreement, etc.

[1] Article 14 of the Labor Standards Act / [2] Article 14 of the Labor Standards Act / [3] Article 35 of the Labor Union and Labor Relations Adjustment Act / [4] Article 3

[1] Supreme Court Decision 94Da22859 delivered on December 9, 1994 (Gong1995Sang, 448), Supreme Court Decision 95Da20348 delivered on April 26, 1996 (Gong1996Sang, 1690), Supreme Court Decision 2002Da50194 Delivered on September 26, 2003 / [3] Supreme Court Decision 96Da13415 delivered on October 28, 1997 (Gong197Ha, 3620), Supreme Court Decision 2002Da23611 delivered on June 27, 2003 (Gong201Da63599 delivered on February 12, 2004)

Defendant 1 and one other

Defendants

Suwon District Court Decision 2003No3965 delivered on February 4, 2004

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. In determining whether a worker is a worker under the Labor Standards Act, regardless of whether the contract is an employment contract under the Civil Act or a contract for work, in substance, whether it is a subordinate relationship with an employer for the purpose of wages (see Supreme Court Decisions 94Da22859 delivered on December 9, 1994; 95Da20348 delivered on April 26, 1996; 2002Da50194 delivered on September 26, 2003, etc.).

According to the records, the Gangseo-gu and 24 others (hereinafter referred to as the "large Arms Co., Ltd.") concluded a daily employment contract with the non-indicted Co., Ltd. in the management of the defendants to reduce the taxi commission by 10,000 won per day compared to regular workers without a separate monthly wage, and the excess of the taxi commission was made. In the above contract, the term of the contract is until the non-indicted Co., Ltd. was issued a regular employment in accordance with the employment plan of the non-indicted Co., Ltd., but if there is a plan to employ the non-indicted Co., Ltd., the contract was decided to preferentially employ the non-indicted Co., Ltd. (Article 1 of the Labor Contract). In fact, the regular drivers of the non-indicted Co., Ltd. were assigned to the above company as a regular driver for up to 12 months, and were assigned to the company as a regular driver until 27 months, barring any special circumstance, the above large arms Co., Ltd. should work on the date designated by the non-indicted Co., Ltd. (Article 2).

The judgment of the court below is correct to regard the hostiles of this case as an employee under the Labor Standards Act, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles on workers under the Labor Standards Act

2. However, the court below is not justified in punishing the Defendants as a violation of Articles 112 and 36 of the Labor Standards Act, where they did not pay the same wages as the regular engineer to the instant weapons company.

The court below held that the collective agreement concluded between the non-indicted corporation and the non-indicted corporation labor union (hereinafter referred to as the "trade union") applies to the company of this case under Article 35 of the Labor Union and Labor Relations Adjustment Act (hereinafter referred to as the "Labor Union and Labor Relations Adjustment Act"). Thus, the defendants are obligated to pay the company of this case wages in the same way as the regular engineer.

However, Article 35 of the Trade Union and Labor Relations Adjustment Act provides that when a collective agreement applies to one half or more of the workers of the same kind of job employed at a business or workplace, the said collective agreement shall apply to other workers of the same kind of job employed at the same business or workplace. Accordingly, the term "worker of the same kind of job subject to the collective agreement" refers to a person who is expected to be subject to the agreement pursuant to the provisions of the pertinent collective agreement, and on the other hand, a person who is not a member of the association pursuant to the provisions of the collective agreement such as the collective agreement is not expected to be subject to the application of the collective agreement, and thus cannot be deemed as a worker of the same kind of job subject to the general binding force of the collective agreement (see Supreme Court Decisions 96Da13415 delivered on October 28, 1997, 202Da23611 delivered on June 27, 2003, 201Da63599 delivered on February 12,

However, according to the records, Article 4 subparagraph 3 of the collective agreement between the non-indicted stock company and the trade union provides that "a person who does not have been issued as an employee by the company" shall not join the trade union, and since it is recognized that the weapons of this case are not affiliated with the trade union, it may be viewed that the weapons of this case is not qualified for joining the trade union. Therefore, the court below should have determined whether the company has the obligation to pay wages under the collective agreement to the defendants through an examination on whether the weapons of this case is a same kind of worker with the general binding force of the collective agreement.

Nevertheless, the court below did not closely examine whether the collective agreement applies to the weapons of this case, and found him guilty of this part of the facts charged and punished as a violation of Articles 112 and 36 of the Labor Standards Act. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the binding force of a collective agreement, and it is obvious that this affected the conclusion of the judgment.

Therefore, among the judgment of the court below, the part which found the Defendants guilty of violating the Labor Standards Act due to the failure to pay wages to the large weapons of this case should be reversed, and the court below found the Defendants guilty of all the facts charged including the above facts charged and sentenced the Defendants to one punishment by deeming the Defendants as concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below shall be reversed

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)