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

[2] The case holding that a manufacturer of ready-mixeds who entered into a ready-mixed transportation contract with the manufacturer and received money in accordance with the volume of transportation shall not be an employee under the Labor Standards Act

[1] In determining whether a worker is a worker under the Labor Standards Act, regardless of whether a contract is an employment contract under the Civil Act, a contract, or a contract for work, and whether a worker has provided labor in a subordinate relationship with an employer for the purpose of wages in substance. Determination of whether a dependent relationship here exists shall take into account the following factors: (a) the content of the work is determined by the employer; (b) whether the employer is subject to specific and direct direction and supervision; (c) whether the worker is subject to work hours and place of work by the employer; (d) whether the worker is a substitute for the work; (e) ownership of equipment, raw materials, work tools, etc.; (e) whether the worker has a basic or fixed wage; (e) whether the wage has a tax base; and (e) whether the provision of labor and the exclusive relationship with the employer; and (e) whether the status of the worker is recognized by other social security laws and regulations, such as whether the worker has continued to provide labor and the degree and degree of the exclusive relationship with the employer; and (e) whether the economic, social conditions of both parties.

[2] The case holding that a manufacturer of ready-mixed vehicle who enters into a contract for ready-mixed transport and receives transport expenses in accordance with the volume of ready-mixed transport shall not be an employee under the Labor Standards Act who provides labor for the purpose of earning wages under a subordinate relationship with the manufacturer of ready-mixed, in light of various circumstances, such as the fact that even though the manufacturer is under certain control, the employment rules, etc. are not applied and the income tax is not withheld, medical insurance or national pension benefits are not provided, the manufacturer bears the repair cost of the ready-mixed vehicle, the freight paid by the manufacturer of ready-mixed is calculated only based on the volume of the transported ready-mixed, and even if the manufacturer does not comply with the control of the ready-mixed company, it is not an employee under the Labor Standards Act who provides labor to the ready-mixed company for the purpose of earning wages under the subordinate relationship with which the manufacturer is employed.

[1] Article 14 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see Article 14 of the current Labor Standards Act) / [2] Article 14 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see Article 14 of the current Labor Standards Act)

[1] [2] Supreme Court Decision 95Da20348 delivered on April 26, 1996 (Gong1996Sang, 1690), Supreme Court Decision 96Nu1795 delivered on February 14, 1997 (Gong1997Sang, 786) / [1] Supreme Court Decision 96Do732 delivered on July 30, 1996 (Gong1996Ha, 2754 delivered on September 6, 1996) (Gong196Ha, 2972) Supreme Court Decision 97Nu13016 delivered on November 14, 1997 (Gong197Ha, 382)

Plaintiff 1 and one other

Sungan Industry (Attorney Lee Dai-soo, Counsel for the defendant-appellant)

Cheongju District Court Decision 96Na1956 delivered on December 26, 1996

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court of first instance cited by the court below, the court below held that the defendant operated the manufacture and sale business of ready-mixed; the plaintiff 1 August 1, 1990; the plaintiff 2, August 16, 1990; the contract period shall be one year; where both parties raise an objection to the contract after the expiration of the contract period, the contract shall be impliedly renewed; the plaintiff 1, June 15, 1995; the plaintiff 2 agreed on the transportation of ready-mixed on April 8, 195; the plaintiffs 1, and 3, in addition to the case where the defendant's work at the designated time under the defendant's instruction and the defendant's work at night, the defendant shall not be obliged to cooperate with the defendant's order for delivery of ready-mixed; the plaintiff 2, in addition to the case where the defendant's work at night and the defendant's work at night, shall not be obliged to cooperate with the defendant's order for delivery of ready-mixed; the defendant's work at night.

2. However, it is difficult for the lower court to accept the fact-finding and determination as above in the following respects:

In determining whether a contract constitutes a worker under the Labor Standards Act, regardless of whether a contract is an employment contract under the Civil Act or a contract for work, and whether a worker provides work in a subordinate relationship with an employer for the purpose of wages at a business or a workplace. Determination of whether a dependent relationship exists, the contents of work shall be determined by the employer, and whether the employer is subject to specific and direct direction and supervision by the employer, whether the work hours and the place of work are designated by the employer and are detained by the employer, whether the worker has a substitute nature of work, whether the worker has a basic salary or fixed wage, whether the wage has a characteristic of the object of work itself, whether the wage has a wage, whether the wage has a continuous provision and the exclusive nature of the employment relationship, whether the status of the worker is recognized by other Acts and subordinate statutes, such as Acts and subordinate statutes on social security, and whether the worker is subject to economic, social, and social conditions (see, e.g., Supreme Court Decision 197Nu1964, Apr. 197).

(10) According to the records of this case, even if the plaintiffs et al. violated the order of the plaintiffs to designate a place for transportation of ready-mixed for the plaintiff et al., and the transport volume on the following day when the plaintiffs et al. designated a place for transportation of ready-mixed, but the order was adjusted so that they can transport the highest transportation quantity on the following day. However, this order cannot be allocated to drivers individually in accordance with the above contract for transportation of ready-mixed, but it does not apply the rules of employment to the plaintiffs. (2) The plaintiffs are not allowed to leave their office by the prior notification if necessary, and the plaintiffs are not allowed to receive any disadvantage such as termination of the contract even if they did not work continuously, and they are not subject to the plaintiffs' order for transportation of ready-mixed for the reason that they are not subject to the defendant's order for transportation of ready-mixed for the reason that they are not subject to the defendant's order for transportation of ready-mixed, but are not subject to the defendant's order for transportation of ready-mixed in accordance with the contract terms.

In the same way, the plaintiffs cannot be viewed as a worker under Article 14 of the former Labor Standards Act (repealed by Act No. 5305 of March 13, 1997), which provides labor for the purpose of wages under their subordinate employment relationship with the defendant.

Nevertheless, the court below decided that the plaintiffs are workers under Article 14 of the former Labor Standards Act and decided that the defendant is obligated to pay retirement allowances to the plaintiffs. Thus, the court below erred by misunderstanding facts against the rules of evidence or misunderstanding the legal principles on workers, which affected the conclusion of the judgment.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)