2010Du10754 Revocation of the Request for Remedy against Unfair Dismissal

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Seoul -

Representative;

Attorney omitted

The Chairperson of the National Labor Relations Commission

Omission of Litigation Performers

1. Kimun;

2. This;

Defendant Intervenor’s Address Seoul LTION

Defendant Intervenor’s Intervenor’s Intervenor omitted

Seoul High Court Decision 2009Nu22043 Decided May 4, 2010

March 24, 2011

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal.

The determination of whether a worker is a worker under the Labor Standards Act shall be based on whether the form of a contract is an employment contract or a contract for work, and whether a worker has a subordinate relationship with an employer to pay wages at a business or workplace. Whether the above subordinate relationship is determined by the employer, and whether the employer has considerable command and supervision in the course of performing work, such as employment rules or personnel management regulations, etc., whether the employer is bound by the employer, whether the employer is capable of operating his/her business on his/her own account, such as possessing equipment, raw materials, work tools, etc., or having a third party employ and act on behalf of him/her, and whether the risks, such as the creation of profit and loss by providing labor, are the nature of the work itself, whether the basic salary or fixed wage was determined, and whether the wage tax was withheld at source, and whether the employer has an exclusive relationship with the employer, and whether the status of an employee is recognized as a social security system, etc., and whether the employer has a superior economic and social status to the employee should be determined by the Supreme Court.

6. The lower court, based on the reasoning of the judgment of the first instance, found the following circumstances: ① the Intervenor was employed as film gathering personnel by the Plaintiff’s public announcement; ② the Intervenor was engaged in the work with certain discretion in view of the characteristics of the work regarding film production; but the Intervenor continued to receive instructions for revision of the contents and methods of photographing and other contents of the work produced in accordance with the plan of news gathering personnel; and ③ the Intervenor did not receive an amount calculated in a fixed amount of working hours per day; ② the Intervenor did not receive an order for revision of the Rules of Employment to the Intervenor’s work in the field other than the aforementioned oral or e-mail for the purpose of gathering and editing materials; ③ the Intervenor did not receive an amount calculated in a fixed amount of working hours per day; ② the Intervenor did not actually receive the Plaintiff’s wages from the Intervenor’s employees for the purpose of maintaining the employment relationship with the Intervenor’s employees, even if it appears that the Intervenor did not actually receive an amount calculated in a fixed amount of working hours per day.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence, misapprehension of legal principles as to the criteria for judgment of workers under the Labor Standards Act, or violation of reasons.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok

Justices Lee Hong-hoon

Justices Kim Nung-hwan

Justices Min Il-young