2012Na4823 Litigation relating to labor

1. Kim○-○

2. Kim○-○

3. Periodical; and

4. Red○○.

5. Lighting-○.

6. ○○.

7. Kim○-○

8. Analbia;

9. Prostitution○○;

10. ○○

11. Park ○○

12. Kim○-○

13. Domination

14. Objection.

15. Kim○-○

16. Red ○○

17. Ma○○

18. Mo○○

19. Diao

20. Park ○○

21. Prostitution ○

Mypho Ba Co., Ltd.

Gwangju District Court Decision 2012Gahap50249 Decided July 26, 2012

March 6, 2015

April 24, 2015

Text

1. Of the judgment of the court of first instance, the part of the plaintiffs' preliminary claim as stated in Nos. 1 through 7 of the annexed list No. 8 through 21 of the same list as the plaintiffs' part of the annexed list shall be revoked

2. The Plaintiffs listed in [Attachment No. 1-7] No. 1-7 of the Plaintiff List are confirmed to be the respective Defendant’s employees.

3. The defendant shall dismiss each of the plaintiffs as stated in [Attachment 8-21] Nos. 8-21 of the plaintiff's list of plaintiffs' expression of intention of employment. 4. The defendant's appeal as to the plaintiffs' primary claim as stated in [Attachment 8-21] No.

5. All costs of the lawsuit shall be borne by the defendant.

The decision of the first instance court shall be revoked. The plaintiffs listed in the attached No. 1 to 7 of the plaintiff's Schedule are each defendant's root.

I confirm that the plaintiffs are in the former status. At first, No. 8 to 21 of the same list are the plaintiffs.

the defendant's status as the employee of each of the defendant, the defendant is entitled to the same list No. 8

In 21, each of the plaintiffs has expressed his intention of employment.

1. Basic facts

A. The Defendant entered into a contract with in-house subcontractors (hereinafter referred to as the “Defendant’s partner companies”) for some duties of manufacturing and selling different different different different different different kinds of tyratory and rubber products using 5,00 full-time workers at the ○○○ in Gwangju Mine-gu, the head office and Gwangju factory, and 5,000 workers at the Jeonnam G, and entered into a contract with in-house subcontractor with respect to the manufacturing and selling of different tyratory and rubber products.

B. The plaintiffs are those who are employed by the defendant's Gwangju factory or grain factory cooperation company on the date stated in the annexed list of plaintiffs. The plaintiffs are those who provide labor in the manufacturing process by moving the relevant factory to another company. After the entry, despite the change of the affiliated company after the entry, the new subcontractor actually succeeds to the employment of the new subcontractor without suspending the work or changing the process of the production, and have been employed in the same list as the subcontractor entered in the same list at the time of the institution of this case.

C. The ○○○ and the Do○○○ asserted that the Defendant’s partner is engaged in the packing of fish products in the Defendant’s aeromatic plant, and that it constitutes his working environment around August 2008, and filed a petition for correction of discrimination against the Defendant, etc. with the Jeonnam Regional Labor Relations Commission around that time, on the charge of violating the Act on the Protection, etc. of Temporary Agency Workers.

D. On February 10, 2009, the Defendant received a corrective order from the Gwangju Regional Labor Office to the effect that the form of work, such as Don○, constitutes temporary agency work, and thus, they directly employ them. The Defendant received a corrective order from the Gwangju District Court on June 2010.

17. The Gwangju District Court (2009Guhap1761) filed a lawsuit seeking revocation of direct employment instruction and disposition, etc., but was sentenced to a judgment against June 17, 2010. The Gwangju High Court (2010du1346) appealed on January 27, 201, but was sentenced to a dismissal of appeal on January 27, 201. The appeal was dismissed on July 1, 201, while Supreme Court Decision 201Du6097, Supreme Court Decision 2011Du6097.

E. Meanwhile, the Defendant factory goes through several processes for the manufacture of tyresponding 1), the main process for the manufacture of tyresponding 2, the pressureout process 2), the foundation process 4), the scresponding process 6), the scresponding process 7), and the inspection process 8). Of these, those related to the Defendant’s collaborative company are raw material loading and unloading process, crycresponding process, scrap cresponding process, TRton process ( semi-scresponding 1), PARton process, open millton process, inspection process, packing process, and content are as follows. 1) The raw material processing is “the ethyl process” of loading and unloading raw material to be loaded in a place where tyresponding ethyls were supplied to the Defendant company, and it is necessary to transport ethyl or remove ethyl material from each ethyl process.

3) Scrap processing process is part of foundation and brid processing process, which includes the work of Belgium re-Foundationing with rubber sources that have defects generated in the plastic process, the work of repairing Gume - Edl11), replacement or repair of ice 14), removal of lab laps’s laps’ laps’ laps’ laps’ 15, and 17) removal of semi-finished laps’ laps’ laps’ laps’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ laves’ 17.

7) Open-tightton operations are reprocessing to reprocessing rubber used as inferior products in each process, or reprocessing to sell or dispose of such rubber that has not been used, and they are made into rubber that can be re-processed by inserting rubber into open-tight machinery that has left a length or a width or for any other reason, and then put rubber into an open-tight machine and then put it into a rubber that can be used in such machine.

8) The inspection process is a process that inspects saves produced through a gender-type process and a saveying process, and transfers saves that passed a performance test to products by conducting a saves test, screening, and performance test on saves produced from saves produced.

9) Packing process is a process that is packaged when it is deemed that the inspector conducted an inspection and takes a normal place. Packaging process consists of traw and irpirpirirpirirs (protective irsts between tubes and other irpirs) after breaking them into the string place, trawing operations that string them into the packing place, trawing operations that cover all irpirs and irpirpirirpirs into the car factory.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 3, 26, 50, 69, 79, 100, Eul evidence Nos. 7, 10, 19, 20, - 739 (including each number), and the purport of the whole pleadings

2. The plaintiffs' assertion

The plaintiffs claim as follows, and seek confirmation against the defendant that the plaintiffs are in the status of the defendant's employee, and seek preliminary performance of the duty to employ the plaintiffs as stated in No. 8 through No. 21 of the plaintiff's Schedule No. 21.

The Defendant’s collaborative companies were selected without undergoing the tendering procedure, without any substantial authority to employ the Plaintiffs, and have no physical facilities and human resources, and the organization of which was established for the contracting business and discontinued upon the termination of the contracting business. Unlike the contract, the Defendant paid the Defendant’s collaborative companies in excess of the contract amount or the unit price under the contract amount. Unlike the contract amount, the Defendant paid the Plaintiffs directly to the Plaintiffs such as school expenses, summer leave expenses, annual vacation leave expenses, annual bonus, performance bonus, production incentive, and non-regular labor union, and paid the Plaintiffs the difference in the wages under the wage organization agreement concluded between the Defendant and the Defendant non-regular labor union by adding them retroactively to the Plaintiffs. The Defendant’s management of the status of the Plaintiffs’ commuting to the work was subject to the work hours set by the Defendant, and thus, the Plaintiffs were not in the form of a labor contract, even if they were in fact engaged in the work, and thus, they were in cooperation with the Defendant in the form of a labor contract.

○ Even if there was no implied employment contract between the Plaintiffs and the Defendant, the contract concluded between the Defendant and the Defendant’s subcontractor constitutes a disguised employment contract, and its substance constitutes a disguised employment contract. As such, the Plaintiffs listed in subparagraphs 1 through 7 of the attached Table No. 1 of the Plaintiff’s List are deemed to directly employ the above Plaintiffs pursuant to Article 6(3) of the former Act on the Protection, etc. of Dispatched Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter “former Dispatch Act”) by the Defendant, who was the user company prior to July 1, 2007, continuously used for more than two years pursuant to Article 6(2) of the former Act on the Protection, etc. of Dispatched Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter “former Dispatch”), and there is a direct employment relationship between the said Plaintiffs, and the Plaintiffs listed in Articles 8 through 21 of the attached Table No. 8 to the Plaintiff’s List.

3. Determination

(a) Facts of recognition;

1) The Defendant’s collaborative companies established and operated the Defendant’s collaborative companies (a person who established and operated the Defendant’s collaborative companies) were the Defendant’s retired workers, etc., and were established by acquiring the office equipment from the previous employer at the time of concluding the contract with the Defendant, and immediately closed the contract upon termination of the contract with the Defendant

B) In relation to the establishment and closure of the Defendant’s partner companies, the Defendant provided the Defendant’s partner companies with telephone systems in the Defendant’s factory and the Defendant’s name free of charge, and paid the Defendant’s partner companies expenses for the discontinuance of business or the acquisition of business.

C) The subcontractors completed their business registration individually, but instead did not own particular physical facilities, special technology, etc. except for the office fixtures, and only one representative was working, except for a large number of workers, and were engaged in the services contracted by the Defendant for the duration.

D) The Defendant’s subcontractor, with the rules of employment, recruited workers, concluded an employment contract individually, withheld their wage and withheld their income tax. The subcontractor or representative purchased four major insurance, such as the National Pension and Medical Insurance, under the name of the subcontractor or representative, exercised their right of personnel by receiving an application for temporary retirement from workers, and provided their workers with working clothes, etc.

E) The council of representatives of gold-free subcontractors will enter the workshop program on February 2, 2010.

On April 30, 2010, the lock-out was closed on May 8, 2010, and the Defendant's partner participated in the lock-out.

2) The Defendant’s subcontractor entered into a contract and entered into a contract with the Defendant only on the part of the Defendant’s "duty of loading and unloading raw materials for the purpose of the contract," or on the part of the contract amount as fixed amount per month, on the basis of the volume of the work, the content of the contract, which is calculated on the basis of the work amount. The Defendant’s subcontractor entered into a contract with the manufacturing support department, the United States dollars, the APU duty or the product selection support department, the APU duty or the 2nd-class product shipping duty, the dynamic shipping duty, or the PCR press duty.

B) On April 2010, the Defendant selected a new subcontractor through an open recruitment procedure, such as making a public announcement of the recruitment of 1 or 2 new subcontractors by process as a result of the filing of a petition for entering the basic facts of ○○○, etc., the Defendant: (a) had different contents from the original public notice; (b) had different contents from the standard for the selection evaluation; (c) had exceeded KRW 2,50,000,000 as the unit price stated by the applicant; and (d) had been selected by some applicants without stating Nama.

C) On July 21, 2010, the Defendant selected a new subcontractor through the above recruitment procedure, and concluded a majority of the above contract agreements on July 21, 2010, but immediately before the instant lawsuit was filed.

21. The contract entered into between the Defendant and the subcontractor by attaching a list of working standards, etc., specifically stating the contents of the contract work, and entering into a contract with the Defendant to compute the contract cost for certain duties according to the quantity of work.

E) The previous contract agreement entered into by the Defendant’s subcontractor does not include a contract providing security for the subcontractor, but after the said petition case, “B” includes that “B must pay to Party A (Defendant) the cash, real right, or certificate of performance guarantee insurance equivalent to or more than KRW 50 million in order to guarantee the performance of this contract.”

F) At the time of multiple months after the conclusion of the contract, the representative of the Defendant’s subcontractor either set up a collateral security in line with the above collateral agreement for the Defendant or issued a contract performance guarantee insurance policy, and some of them were not included in the above content of the contract but provided.

G) The Defendant’s subcontractor filed a claim for the payment of the contract with the Defendant along with the past employees’ number of workers and the past work schedule specifying the work details, and the Defendant also prepared and managed the comprehensive work attitude table by service company, and paid the contract cost based on the number of workers, etc.

H) After the alteration of the contract price for certain duties based on the quantity of work, the Defendant’s collaborative companies received confirmation of the work quantity from the relevant department of the Defendant and claimed and paid the contract price, but the Defendant applied the premium increase rate even in cases where the work quantity of the Defendant collaborative companies falls short of the standard quantity, or applied the price change exceeding the agreed unit price fluctuation in excess of the agreed unit price.

I) The Defendant’s subcontractor has been paid the amount equivalent to the annual final payments, the amount of dispute settlement, school expenses, encouragement, and the amount equivalent to the four major premiums during the process of implementing the said contract. After the standard for calculating the contract cost has changed to the quantity of work, it received - 12 - the commission of the labor company for the process of labor disputes.

(j) The Defendant’s collaborative company was requested from the Defendant to provide services, such as “the president who was requested from the Defendant on the day when the initial holiday was scheduled, or who was not specified in the original contract, to provide services, such as the funeral bed, and the preparation for the case, and received the payment from the Defendant for additional contract expenses. 3) The Defendant’s collaborative company’s employees worked in line with the Defendant’s working hours by using the materials and equipment provided by the Defendant at the Defendant’s factory. The working place differs from the working place of the Defendant’s employees or remains far away from some different distance.

B) The Defendant’s employees’ work contents were a relatively simple work that did not require any particular technology by participating in a specific process among the manufacturing processes as seen earlier.

C) The Defendant, including the work contents of the employees belonging to the Defendant’s subcontractor, established a fair flow chart, guidelines for manufacturing process technology by process, management standards, safety rules, etc., and attached them to the subcontractor, or attached them to the work site at the factory. The Defendant determined the work contents on the same day and entered them in the work site, or prepared and distributed work orders, etc.

D) During the loading and unloading process of raw materials, the Defendant’s employees engaged in the work of loading and unloading raw materials from the Defendant’s subcontractor’s raw materials, and then transporting them to a certain loading place. During that process, the Defendant’s employees notified the subcontractor’s employees of the contents of the work by determining the withdrawal and change, making oral notification of the withdrawal and change thereof, or attaching documents such as “explosive delivery to the left-hand side, giving priority to the right-hand side, and prohibiting the use thereof. After the instant lawsuit was filed, the Defendant sent the details

E) In the cludio process, the Defendant’s employees removed and arranged ethyl code in a closed space separated from the cludio to lead calender. Defendant employees sent signals to the partner company employees of the subcontractor through studio, and made the partner company click click click click click click click click click click click click click click click click click click click click click click click click click click click click click click click click click click cl, and notified the partner of the company of the click click click click click clr clr cl.

F) During the scrap process, the Defendant’s employees were performing the work of reproducing the rubber source in which the defect occurred in the process of the sex form by using the Belgium recycling machine, attaching the rubber source, attaching Edgege, directly repairing or collecting the defective transport outlet, and commissioning the repair to the repair station, the Defendant’s employees, in the process, informed the Defendant’s employees of the contents of the work by attaching a camera, such as “the use of the rubber source and transport outlet as much as possible for recycling, shot processing, Gum Edge attachment,” or “quiqui repair needs.”

G) In the press process, the Defendant’s partner distributed drugs (out-of-the-counter medication) to GREE CAS CAS for the Defendant’s partner company to send them to the Category A process. In that process, the Defendant’s employees determined the product loading direction (out-of-the-counter) that has a significant impact on the quality of the product in the Category A process, and notified the Defendant of the product loading direction (out-of-the-counter) to enter the product in the front of the machinery, and notified the Defendant to be registered, indicating inappropriate loading, and notified the subcontractor’s employees or field agents of the content of the distribution to be disseminated by specifying two calendars, personnel divers, etc.

In the case of Gwangju factory, the defendant had the employees of the defendant take charge of the press by 2011.

H) During the TBRton process, employees of the Defendant’s collaborative company loaded and arranged inferior rubber by type, and applied it to a rubber BB14 machine, a renewableer BB14 machine, from side to prevent rubber from falling off, and the Defendant’s employees performed the work of searching for and removing the hacks from the recovered rubber using the stampter. During that process, the Defendant’s employees informed the subcontractor of the details of the work by separately designating rubber to reproduce in the string machine and operating the straw, and attaching verbal or hacks marking to the strawer. The employees were also arranging the work site with the employees of the strawer until June 2010, but they also arranged the work site with each of the employees of the 10th employees of the 20th employees.

I) In the PA internship process, the employees of the Defendant’s collaborative company divided the residuess or inferior products generated in the sex process into PA and operated the PA to separate the spug rubbers and the sprink machines. In that process, the Defendant’s employees stated that, in addition to the product brought about and re-processed in the product subject to work, they would cause the subcontractor to treat the spice as the end," or attached special marks. Meanwhile, in the case of the spton factory, the Defendant had the subcontractor’s employees and the Defendant’s employees perform the PA internship work alternates by different time periods. However, from December 208, the Defendant did not place his employees from the point of time.

(j) During the open-speton process, employees of the Defendant’s collaborative company carried out the work of putting rubbers that require reprocessing into open and crowdfundings and bringing them into the place of sales rubber loading if it is impossible to do so. In that process, employees of the Defendant informed the subcontractor of the details of the work to the subcontractor by attaching the joint cover of “scoping, thickness, central cutting,” “scopic rubber not,” and “scopic” other than bringing rubbers in need of reprocessing, and requesting the on-site agent, etc. to make any product that is not in conformity with the Standards if it is manufactured through reprocessing. If the employees of the collaborative company do not bring about the Defendant’s work by June 2010, the employees of the collaborative company collected rubbers that need reprocessing by finding in a direct other process, but do not follow it thereafter.

(k) In the inspection process, the Defendant’s subcontractor’s employees classified them to conduct a performance test on other terms and conditions that the employees of the Defendant’s collaborative company may conduct a performance test and transferred them to a performance test machine. In that process, the Defendant’s employees changed the performance test machine to be used during a large number of performance testing machines and notified all relevant persons through microphones, and provided them with job training to new employees. After the instant lawsuit, the Defendant notified the cooperation company’s field agent of the aforementioned matters without using microphones. However, the Defendant’s factory was divided into two parts (PCR screening method 21) and LT screening method 22), but only one cooperation company’s field agent was the cooperation agent. Meanwhile, by October 2009, the Defendant had Gwangju factory - 16 - the Defendant’s employees take charge of selective inspection.

(l) In the packing process, the Defendant’s subcontractor’s employees received work quantities and transported them into packaging machines and packed them using packaging machines. During that process, the Defendant’s employees determined and notified the type, quantity, and applicable packing method of the packaging on the day, in addition to the direct packing work with the help of the subcontractor’s employees, prior to the above authentic incident, the Defendant’s employees determined and notified the type, quantity, and applicable packing method of the packaging on the same day. After the above authentic incident, the Defendant’s employees were working in other spaces, and notified the Defendant’

[Ground of recognition] Facts without dispute, Gap's entries and images, and the purport of the whole pleadings (including each of the numbers), Gap's statements and videos, and the purport of the whole pleadings.

B. Whether it constitutes an implied employment contract relationship

1) If the defendant's employees employed by the plaintiff's employer to be employed by a third party's workplace, the plaintiff's employer is nothing more than formally and nominally equal to the third party's labor contract, and the defendant's employees are in a subordinate relationship with the third party, and the actual payment of wages is a third party, and the labor contract is established with the third party, and the defendant's employees who are not employed by the defendant's employer and the third party can not be viewed as having an implied labor contract. (See Supreme Court Decision 2008Du4367, Jul. 22, 2010, the defendant's employees who were employed by the defendant's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business, and the defendant's business operator's business operator's business operator's business operator's business operator's business operator's business's business operator's business's business operation of the above can be seen.

4) Sub-decisions

Therefore, it cannot be said that the labor contract between the plaintiffs and the defendant subcontractor is formal or implied between the plaintiffs and the defendant.

C. Determination as to whether workers are dispatched

1) In a case where the Plaintiff’s employer requires a certain employee to perform the work for a third party, whether the legal relation constitutes a temporary placement of workers subject to the Dispatch Act does not go against the name or form of a contract attached by the party, but rather, whether the third party directly or indirectly gives binding instructions on the performance of the work in question to the pertinent employee, whether it can be deemed that the pertinent employee was actually incorporated into a third party’s business, such as forming a group of work with the third party and directly performing the work, and whether the Plaintiff’s employer independently exercises the power to determine the number of workers, education and training, work hours, rest time, inspection of work attitude, etc., whether the contract purpose is determined specifically as a limited performance of the work, and whether the purpose of the contract is distinct from the work performed by the said employee belonging to the third party, whether the work is professional and technical, and whether the Plaintiff’s employer has an independent company or facility necessary to achieve the purpose of the contract (see, e.g., Supreme Court Decision 200Da7706, Feb. 37, 2015).

2) Therefore, as to whether the Defendant’s direct and indirect order to work for employees belonging to the Defendant’s subcontractor was given, it is difficult to view that the Defendant’s employees were directly and indirectly informed of the fact-finding and the overall purport of oral argument, namely, the Defendant’s collaborative company’s participation in a series of work hours in accordance with the Defendant’s factory employees’ work hours and carried out relatively simple and simple work. The Defendant prepared detailed work outlines, work flow, work process guidelines, management standards, and safety management guidelines, and attached them to the collaborative company, and notified the employees of the number of work hours on the same day. As such, it is difficult to view the employees of the collaborative company as having been directly and indirectly notified of the Defendant’s work site and other work sites, and thus, it is difficult to view that the employees of the collaborative company could not arbitrarily violate or change the Defendant’s work site’s work site direction or work site. In light of the fact that the employees of the collaborative company did not directly or indirectly change the Defendant’s work site’s work site’s direction or work site’s execution.

In this regard, the defendant asserts that the above work order was given to the purport that the work order of the defendant was designated within the scope and frequency of work, but it is reasonable to see that the defendant's workers engaged in specific work rather than designating the work scope. 3) Next, as to whether it can be seen that the workers belonging to the defendant's subcontractor were actually incorporated into the defendant's work, the following circumstances can be seen as follows: (i) workers belonging to the defendant's subcontractor complies with various work standards, safety standards, and facility management standards presented by the defendant using materials and implements provided by the defendant at the work place provided by the defendant for the working hours of the defendant's employees; (ii) workers belonging to the defendant's subcontractor participated in one of the series of different work processes or one of the work processes; (iii) the defendant's workers' participation in the work before and after that, in light of the defendant's employees' participation in the work, it can be deemed that the defendant's work was carried out by collaboration with the defendant's employees, but it can be deemed that the defendant's work was actually carried out by the defendant's work.

4) In addition, according to the above facts, whether the Defendant’s collaborative company independently exercises the right to decide on the selection of workers, number of workers, recess hours, inspection of work attitude, etc., the Defendant’s collaborative company appears to have prepared separate rules of employment, prepared human resources placement tickets, permitted them to work for contract, and confirmed their work details. However, the following circumstances can be seen as having been revealed by the evidence prior to the commencement of work for the Defendant’s collaborative company, including the fact that there seems to be no change in the work progress since the commencement of work for the Defendant’s collaborative company, and that there seems to have been no actual exercise of the Defendant’s right to work allocation in relation to the performance of work by the Defendant’s collaborative company. The Defendant appears to have exercised considerable discretion in the process of selecting the Defendant’s collaborative company. In light of the fact that the Defendant’s collaborative company still has no duty to pay employees for work hours, such as labor costs, welfare expenses for purchasing work clothes, and operation expenses, as well as for work hours after the conclusion of the contract, it appears that it still has no obligation to pay employees for work.

It is difficult to see it.

5) In addition, as to whether the work entrusted by the employees of the defendant's subcontractor is distinguished from the work of the defendant's employees and is aimed at completing an independent work due to expertise and technical nature of such work, the following circumstances can be seen as follows: (a) the work performed by the employees of the defendant's subcontractor is limited to the work performed before the defendant's employees are pre-paid or ordinarily performed in other factories; (b) the work performed by the defendant's subcontractor is not limited to the work performed by the defendant's employees; and (c) special expertise and technological nature are not necessary for a relatively simple and repetitive work; (d) the purpose of the contract for the defendant's subcontractor is to provide "the work performed independently because it is specified as part of the work performed in detail," rather than to provide "the work performed independently," which is for the purpose of providing "the work performed independently after the contract was requested by the defendant's subcontractor," and (d) the amount of the work performed by the defendant's contractor is no more than the amount of the work performed by the defendant's contractor after the contract was revised.

In light of the circumstances that can be seen as not only as calculated based on the above, it is difficult to recognize that the work assigned to the employee of the Defendant’s collaborative company is aimed at completing an independent work, and it is difficult to reverse it merely because the duty of the employee of the Defendant’s collaborative company is divided by the employee of the Defendant, or the standard for calculation under the contract with respect to certain contract costs has been changed to the work volume.

6) Finally, as to whether the Defendant’s collaborative company has an independent corporate organization or facility necessary to achieve the purpose of the contract, it is difficult to view that the Defendant’s collaborative company has an independent corporate organization or facility necessary to achieve the purpose of the contract, in light of the following circumstances: (a) the Defendant’s collaborative company was composed of many workers without any particular human resources and material facilities; and (b) the Defendant’s collaborative company is not equipped with special expertise; (c) the Defendant’s collaborative company was established in the course of its establishment and closure; (d) the Defendant’s collaborative company was considerably affected by the Defendant in the process of its establishment and closure; and (e) it appears that the Defendant’s collaborative company was established for the contract with the Defendant and immediately closed the business immediately after the completion of the contract; and (e) the representative of the Defendant’s collaborative company is

7) Sub-decisions

Therefore, it is reasonable to view that the Plaintiffs, who are the employees of the Defendant’s collaborative company, were employed by the Defendant’s collaborative company and dispatched to the Defendant’s work site, and received direct command and supervision from the Defendant.

Article 6(3) main text of the former Dispatch Act provides that "if a user company continues to use a temporary agency worker more than two years, it shall be deemed that the temporary agency worker is employed from the day following the second-year period expires." This direct employment deeming provision does not apply only to lawful temporary agency workers (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008, etc.).

Meanwhile, Article 6-2 (1) 3 of the Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter referred to as the "Dispatch Act") provides that "where a user company continues to use temporary agency workers for more than two years, it shall directly employ the relevant temporary agency workers," and the provisions of Article 6-2 (1) 1 and (3) of the Addenda at the time of this Act shall enter into force on July 1, 2007. As regards temporary agency workers to whom the provisions of Article 6 (3) of the former Act apply at the time of the enforcement of this Act, the former provisions shall apply after this Act enters into force."

On the other hand, the direct employment deeming provision applies to the case of the temporary placement of workers that is lawful, even though the duties of the direct production process of the manufacturing business, such as the plaintiffs' taking charge, are excluded from the duties subject to temporary placement pursuant to Article 5 of the former Dispatch Act and Article 5 of the Dispatch Act. Since the plaintiffs listed in the attached table Nos. 1 through 7 have already been used as temporary placement workers for more than two years by the defendant at the time of the enforcement of the Dispatch Act, each employment is deemed to be the defendant's status as a worker since two years have passed since the date stated in the entry date of the same list, and as long as the defendant contests this issue, there is a benefit

In addition, since the plaintiffs mentioned in paragraphs 8 through 21 of the same list are continuously used as temporary agency workers for more than two years by the defendant, the defendant bears the obligation to directly employ them at the expiration of two years from the date of entry in the entry column of the same list, and the defendant has the obligation to express his/her intention of employment to them.

In this regard, the defendant asserts that the direct employment obligation under the Dispatch Act is merely an administrative regulation and does not cause a judicial obligation. However, in light of the language of the above provision, legislative purpose of the Dispatch Act and its amendment process, the above argument cannot be accepted.

4. In conclusion, the plaintiffs' primary claims as stated in Nos. 8 through 21, such as the plaintiffs' claims as stated in No. 1 or 7 of the annexed Table No. 1 or 7, are accepted for all reasons, and the plaintiffs' primary claims as stated in No. 8 or 21 of the same list are dismissed for lack of reason. Since the part of the plaintiffs' primary claims as stated in No. 8 or 21 of the same list among the judgment of the court of first instance is inappropriate, the part of the plaintiffs' primary claims as stated in No. 1 or No. 7 of the same list of the same list of the plaintiffs is inappropriate for this conclusion, the court of first instance accepted the plaintiffs' appeal and ordered the defendant to confirm the above plaintiffs' status and to employ the above plaintiffs. Since the above part of the plaintiffs' primary claims as stated in No. 8 or No. 21 of the same list of the plaintiffs are justified, it is so decided as per Disposition.

Judges Maximum number of judges

Judges Kim Ho-ho

Judges Seo-young

A person shall be appointed.

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