[1] The meaning of "business or workplace which employs not less than five workers" under Article 10 (1) of the Labor Standards Act

[2] The case reversing the judgment of the court below that the company that employs three resident employees and directors' work does not constitute "business or business place that employs five or more workers on a regular basis" that is subject to the Labor Standards Act

[1] The term "business or workplace which ordinarily employs not less than five workers" under Article 10 (1) of the Labor Standards Act, which sets the applicable scope of the Labor Standards Act, refers not to a business or workplace with not less than five regular employees, but to a business or workplace with not less than five regular employees. In this case, the term "regular term" refers to a state where the number of workers is less than five at the time when the number of workers becomes less than five, it refers to a situation where not only the continuous workers in the workplace but also the daily workers employed at that time as necessary.

[2] The case reversing the judgment of the court below that the employee who employs three resident employees and the director's work does not fall under the "business or business place which employs five or more workers" who are subject to the Labor Standards Act

[1] Article 10(1) of the Labor Standards Act / [2] Article 10(1) of the Labor Standards Act

[1] Supreme Court Decision 87Do153 delivered on April 14, 1987 (Gong1987, 842), Supreme Court Decision 87Da4238 delivered on July 21, 1987 (Gong1987, 1390), Supreme Court Decision 93Da4238 delivered on March 14, 1995 (Gong195, 1596), Supreme Court Decision 97Da28971 delivered on November 28, 1997 (Gong198, 70)

Defendant

Prosecutor

Busan District Court Decision 97No3251 delivered on February 26, 1999

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, regarding the facts charged of violating the duty to liquidate wages under Article 30 of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996; hereinafter referred to as the "Labor Standards Act") for 65 workers, such as correction number of the defendant, etc., the defendant does not have any other duty to request the above 4-day employees to attend the above 4-day work, and the defendant does not have any other duty to ask the above 4-day workers to attend the above 6-day work, and if he does not have any other duty to ask the above 4-day work to attend the above 4-day work, and if he does not have any other duty to ask the above 4-day work site workers to attend the above 4-day work site, he does not have any other duty to ask the above 4-day work site workers to attend the above 5-day work site, and if he does not have any other duty to ask the above 5-day work site workers to attend the above 5-day work site work site.

However, according to the reasoning of the judgment of the court below, the so-called fixed person shall work in the office by seeking work, not to perform the duty to provide labor to the defendant, but to work in the office, and only after being employed as a daily basis due to daily work. Thus, the reason why the court below denied the subordinate labor relationship between the fixed person and the defendant is merely before the establishment of the employment contract which is the cause of the fixed person's duty to provide labor, or when the worker has not been employed, and the above fixed person's work is a daily worker, and the university student who has provided the above library transfer work for the purpose of daily work also constitutes a worker under the Labor Standards Act.

In addition, the term "business or workplace which employs not less than five workers" under Article 10 (1) of the Labor Standards Act, which sets the scope of the application of the Labor Standards Act, refers not to the business or workplace with not less than five regular employees, but to the business or workplace with not less than five regular employees. In this case, the term "regularly" refers to a situation where the number of workers is not less than five at the time, and the term "regularly" refers to cases where not less than five workers are objectively determined by social norms, and it shall be interpreted that not only the continuous employees in the workplace but also the daily workers employed at that time as necessary (see, e.g., Supreme Court Decisions 87Do153, Apr. 14, 1987; 87Da831, Jul. 21, 1987; 93Da4238, Mar. 14, 1995).

However, according to the records, during January 1996, the defendant used at least two daily workers including the so-called "work day" and the "work day" during January 22 to January 26, 1996, including the above work day, January 7, January 9, January 14 to January 18, January 200, January 22 to January 31, 200 (two times each time as of January 17 and January 22) respectively. In light of the above circumstances, the defendant used at least two daily workers including the above work day during January 6 and January 31, 1996, and the defendant used at least two regular work day, including the above work day during January 22 to January 26, 199, not the frequency of work, but the number of work days and the number of work days for daily workers, and it is sufficient to view that the above work day is not at least three workers' own work day. In light of the characteristics of this case, it is sufficient that the defendant is at least three workers' own work day.

Nevertheless, the court below determined that the above company cannot be a business or workplace to which the Labor Standards Act applies because there is no regular employee, except three resident employees, after excluding a fixed person, etc. used in the transportation of goods on a daily basis, is erroneous in the misapprehension of legal principles as to the business or workplace to which the above company is ordinarily employed not less than five workers under Article 10(1) of the Labor Standards Act, or in the incomplete examination as to this point. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed and 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 on the bench.

Justices Shin Sung-sung (Presiding Justice)