(영문) 서울행정법원 2016.4.14. 선고 2015구단58273 판결

A. On June 1, 2006, the Plaintiff became a member of the Employment Insurance Co., Ltd. (hereinafter below, Nonparty Co., Ltd.) and acquired the qualification for employment insurance, was appointed as a director at a temporary general meeting of shareholders held on December 8, 2009, and was elected as a representative director at the meeting held on the same day. The Plaintiff was registered as a representative director on the register upon the Plaintiff’s consent. Thereafter, the Plaintiff was reappointed at the board of directors on December 8, 2012, and was reappointed on December 8, 2015.

B. Around March 2012, the Defendant notified the non-party company that the Plaintiff would lose the insured status under the Employment Insurance Act by taking office as the representative director of the non-party company on December 8, 2009. On March 13, 2012, the Plaintiff submitted a report on the loss of insured status under the Employment Insurance Act and lost the insured status under the Employment Insurance Act retroactively on December 8, 2009.

C. On June 27, 2014, the Plaintiff submitted a report on acquisition of insured status with employment insurance to the Defendant, but on July 14, 2014, the Defendant rendered a disposition rejecting the report on acquisition of insured status with employment insurance on the ground that the Plaintiff did not constitute a worker who provides labor for the purpose of wages as subordinate to the employer (the instant disposition was taken below).

D. On May 12, 2015, the Employment Insurance Review Committee dismissed the request for review on May 12, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 6 evidence, Eul evidence 1 to 4, and the purport of the whole pleadings

A. The plaintiff's assertion

The plaintiff was registered as the representative director of the company of this case, but it was merely a formal nominal position, and actually conducted business under the direction and supervision of C, which is a real owner of the company of this case, and received monthly salary in return, it constitutes an insured worker under the Employment Insurance Act. Therefore, the other disposition of this case is unlawful.

B. Relevant legal principles

The term "insured" under the Employment Insurance Act is an employee who is or is deemed to have been insured under the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter referred to as the "Insurance Premium Collection Act"), and the term "worker" under the Insurance Premium Collection Act means an employee under the Labor Standards Act (Article 2 subparagraph 2 of the same Act). Therefore, in order for the plaintiff to be eligible for benefits under the Employment Insurance Act as the insured of the employment insurance, it should constitute an employee under the Labor Standards Act.

An employee under Article 2(1) of the Labor Standards Act refers to a person who provides labor to a business or workplace for the purpose of wages regardless of the type of occupation, and whether it falls under this, regardless of the form of a contract, is determined depending on whether a director of a stock company is actually provided with labor to an employer for the purpose of wages (Article 382(1) of the Commercial Act). Meanwhile, a director of a stock company under the Commercial Act is appointed through a resolution of the general meeting of shareholders (Article 382(1) of the Commercial Act), and its registration is required. Only the legally appointed director can exercise the authority prescribed in the Commercial Act, such as participating in the decision-making of the company as a member of the board of directors (Article 382(2) of the Commercial Act). Accordingly, where a director is delegated by the company with certain administrative affairs (Article 382(2) of the Commercial Act) and concurrently takes charge of the business affairs of the company, if the substance of the entire affairs in charge is not limited to the provision of certain labor under the direction and supervision of the employer (see, e.

In addition, in cases where a director of a corporation receives a certain amount of remuneration in accordance with the articles of incorporation or the resolution of the general meeting of shareholders, it is based on the provisions of Article 388 of the Commercial Act, and its remuneration cannot be deemed as wages under the Labor Standards Act. In addition, even in cases where a director pays a retirement allowance to a director pursuant to the provisions of the company, in principle, the said retirement allowance can be deemed as a kind of remuneration paid in return for the performance of delegated affairs during his/her service, not a retirement allowance under

C. Determination

According to the Plaintiff’s health care unit, Gap evidence 2, and Gap evidence 4 through 16, the non-party company’s representative director’s 10,000 won or more (the non-party company was established on May 17, 2006 for the purpose of real estate redevelopment, sale by proxy, and 16 employees). The Plaintiff was employed as a deputy head on June 1, 2006 for the employment insurance and paid monthly wage. ② The annual salary was 36 million won as at the time of the first recruitment of the non-party company, and the annual salary was 65 million won as at the time of the appointment of the representative director. The Plaintiff’s 20,000 won as at the 2nd meeting of the board of directors, including the above 10,000 won and the 2nd meeting of the 3rd company’s representative director, and the 10,000 won or more as at the 10,010,000 won or more.

The plaintiff asserts that the minutes were prepared in accordance with the formal position of the registry director and the representative director, and all the minutes were determined by the chairperson and could not exercise a substantial voting right. However, as seen earlier, the articles of incorporation of the non-party company could represent the company externally and allow the representative director to participate in the board of directors which decide on important matters of the company, and the plaintiff seems to accept the representative director of the non-party company when approving the above circumstances. This seems to have been a decision by the choice to represent the non-party company and become a member of the board of directors instead of giving up his status as an employee of the non-party company. Even if the plaintiff is unable to exercise a free voting right at the board of directors, it appears that the plaintiff would have been able to make a different decision by law because the plaintiff could actually follow the instructions of the non-party company C, and it is difficult to see that the evidence submitted by the plaintiff alone is a director that only the representative director of the non-party company should be the plaintiff.

Therefore, the Plaintiff cannot be deemed as an employee or the insured under the Labor Standards Act and the Employment Insurance Act, and the instant disposition made on the same premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.