2013A. 289 Unjustifiable dismissal and invalidity confirmation

ParkO (5 - 1)

Gwangju Southern-gu

Attorney Park Jong-chul et al., Counsel for the defendant

60 (62 - 1)

Gwangju Mine District

July 18, 2013

August 22, 2013

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The plaintiff confirmed that he is the defendant's employee, and the defendant pays 35,000,100 won to the plaintiff.

1. Basic facts

A. From September 1, 2010, A opened a hospital in Gwangju Mine-gu 00 - 000 - 000 - (hereinafter “instant hospital”) and worked as the head of the hospital. The Plaintiff was working as the head of the hospital from September 1, 2010 to March 2012 while holding office as the head of the general department of the instant hospital from September 1, 2010, and was paid KRW 2,333,340 each month from January 2, 2012 to March 2012, but did not receive benefits after April 2012.

B. On March 22, 2012, the Plaintiff (hereinafter referred to as “this consulting”) shall provide consulting for the transfer of a company around March 22, 2012.

A. On March 23, 2012, “A” was established and appointed as the representative director, and the head consulting acquired the building of the instant hospital owned by the Plaintiff from the Round, an incorporated association on March 23, 2012. On March 28, 2012, the Defendant leased the instant hospital building as the lease deposit amount of KRW 50,000,000,000,000,000 monthly rent, KRW 15,000,000,000, and the term of lease from March 29, 2012.

C. On April 5, 2012, the Defendant decided to take over the instant hospital from A, and transferred to 331,58,369 won all the human organization, medical appliances, and pharmaceutical products of the instant hospital. The Defendant agreed to pay the said amount in lieu of the Defendant’s acceptance of obligations equivalent to the same amount as that of the existing customer, etc. of A.

D. On April 16, 2012, A arranged that the existing employment relationship was terminated upon reporting the closure of the instant hospital’s business. A around that time, the Defendant obtained permission for the establishment of the instant hospital. A concluded a new employment contract with the employees other than some employees who wish to terminate the employment relationship, and on April 16, 2012, the instant hospital was opened and operated until now.

E. On June 12, 2012, the Plaintiff received notification from an administrative agency that the eligibility for four-party insurance was lost, and then confirmed whether he/she succeeded to the employment of the Defendant. However, the Defendant confirmed that he/she did not employ the Plaintiff.

F. Accordingly, the Plaintiff filed an application for remedy with the former Regional Labor Relations Commission on the ground that the Defendant had worked as the executive branch before the Plaintiff acquired the instant hospital, and that the Defendant had been subject to unfair dismissal from the Defendant. However, on September 3, 2012, the former Southern Regional Labor Relations Commission dismissed the application for remedy on the ground that the Plaintiff and B did not constitute an employee under the Labor Standards Act because they were actually operating or managing the instant hospital.

【Uncontentious facts, Gap’s evidence Nos. 1, 2, 4, and 7 (including each number), Eul’s evidence Nos. 1, 3, 4, 8, 13, 16, and 31, the witness B’s testimony, and the purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. The plaintiff's assertion (1)

From September 1, 2010, the Plaintiff worked as the chief of the general affairs of the instant hospital and as a fire safety manager, and was in charge of the purchase of the hospital’s goods, facility inspection, and patient counseling as a social welfare worker. While the Defendant took over the business of the instant hospital around April 5, 2012 and took over the labor relations of the employees including the Plaintiff, the Plaintiff was actually dismissed due to the denial of labor relations, and such dismissal was null and void as it did not go through a written notification. Accordingly, the Plaintiff is still an employee of the Defendant, and the Defendant is obligated to pay the Plaintiff the total wages of 35,000,000 won ( = 2,333,340 won) x 15 months x 15 months) of the wages the Plaintiff was not paid to the Plaintiff from April 16, 2012.

(2) The defendant's assertion

The Plaintiff, as the transferor of the instant hospital and the lessor of the building of the instant hospital at the time of the transfer and acquisition of the instant hospital, was in the position of the employer who actually operated the instant hospital, and thus, cannot be deemed an employee under the Labor Standards Act, and thus, no provision on restriction of dismissal under the Labor Standards Act is applicable. As long as the Plaintiff was notified by the instant hospital of his intention to dismiss the Plaintiff before the closure of business, it should be deemed that he had already retired before April 16, 2012. Even if the Plaintiff is a worker, the Plaintiff voluntarily expressed his objection to the succession to employment in the process of the transfer and acquisition by the instant hospital, and the Defendant did not receive any labor from the Plaintiff after the Plaintiff was employed by the Plaintiff or transferred the instant hospital. Accordingly, the Plaintiff is not an employee of the Defendant, and the Defendant did not have any reason to pay

B. On the premise that the Plaintiff constitutes a worker under the Labor Standards Act, the Plaintiff asserts that he was dismissed from the Defendant and was unable to provide the Defendant with labor. Therefore, first, we examine whether the Plaintiff constitutes a worker under the Labor Standards Act.

(2) Article 2(1)1 of the Labor Standards Act provides that a person who provides labor at a business or workplace for wage purposes regardless of the type of occupation. Determination of whether a contract constitutes an employee under the Civil Act or a contract for employment ought to be based on whether an employee provides labor in a subordinate relationship with an employer for the purpose of wages in substance. Determination of such a subordinate relationship should be based on whether the employer provides labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether the content of work is determined by the employer, the rules of employment or service (personnel) is applicable, and the employer is specifically directed and supervised in the course of performance of work, whether the employer is designated as working hours and place of work, whether the employee is subject to restraint, whether the ownership of alternative work, equipment, etc., the characteristic of remuneration, whether the nature of remuneration has been determined by the employee itself, whether the provision of labor, the continuity and degree of the employment relationship with the employer, whether the employee is exclusive, and whether the employee is authorized by other statutes regarding social security (see, e.g., Supreme Court Decision 2017Da19216.

(3) According to the health team, Gap evidence Nos. 2, 3, 9, and Eul evidence Nos. 10-1 through 8, and Eul evidence Nos. 8 in this case, it is recognized that the plaintiff was paid the remainder after deducting Class A earned income tax, health insurance, national pension, employment insurance, etc. from the total amount of salaries every month when the plaintiff was in office as the chief executive officer of the instant hospital from September 1, 2010 to March 2012. The plaintiff obtained a social worker qualification certificate on March 23, 2009, and was appointed as a fire safety controller (fire safety controller) of the instant hospital at the time of his employment.

(4) However, in light of the following circumstances, Gap's evidence Nos. 1, 4, 5, 6, 8, 11, and 12 (including each number), Eul's evidence Nos. 1, 2, 4, 7, 13 through 16, 23, 25, 30, 31, 33 through 37, witness Eul, and witness Eul's testimony as a whole, it is not deemed that the plaintiff, as the actual operator or investor of the hospital of this case, was the subject of the above examination and calculation of profits and losses, has exercised considerable authority over the operation of the hospital of this case, and there is no evidence to acknowledge that the plaintiff falls under the witness Nos. 1, 2, 30, 31, 33 through 37, and the whole purport of the pleading as a whole.

① Around January 201, the instant hospital had employed D as the head of the instant hospital and operated D, and transferred all the rights and duties regarding the operation of the instant hospital to B, the head of the administration office of the instant hospital. On March 25, 2010, the Plaintiff began to work in △△△, a telegraphic hospital of the instant hospital, at around KRW 150 million, to D, who operated the instant hospital, around March 25, 2010 (interest amounting to KRW 3 million) and began to work in the instant hospital, a telegraphic hospital of the instant hospital, at around June 2010.

② From the end of March 2011, A was unable to perform the duties of the head of the hospital due to health problems, B was colored by the transferee of the instant hospital, and the Plaintiff, together with the Defendant, was holding consultations on the transfer of the instant hospital from March 2012 to the Defendant.

③ When the auction procedure for the building of the instant hospital owned by the Sinman World, the Plaintiff: (a) established a Dom Consultation and acquired the ownership of the building of the instant hospital on March 22, 2012, immediately before the transfer of the instant hospital; and (b) concluded a lease contract for the instant hospital building with the Defendant who acquired the instant hospital as the representative director of the Dom Consultation, on March 28, 2012. However, the Dom Consultation aims not only at real estate leasing business, but also at the medical equipment development and sales business, etc.; (b) during the process of its establishment, the Plaintiff spent the establishment cost of KRW 36 million for the Plaintiff and KRW 60 million for the instant hospital’s debt status (Evidence B No. 15).

④ After the transfer of the instant hospital, B and A failed to pay employees’ benefits until April 15, 2012. On April 30, 2012, the Plaintiff invested KRW 200,000,000,000 for the purpose of the normalization of the hospital, such as B and employees’ benefits, and decided to transfer the amount of investment to another person after the hospital’s normalization. On May 4, 2012, the Plaintiff was paid employees’ benefits from the said KRW 200,000,000,000,000,000,000,000,000,000,000,000 won.

⑤ On May 4, 2012, the Plaintiff, as the actual lessee B of the above lease agreement entered into with the Defendant, was responsible for B, returned to the Plaintiff the notarial deed as to the said lease agreement, was newly leased by designating KRW 20 million per month, and confirmed that the e-mail consulting acquired all the ownership of the interior interior interior interior interior interior interior interior interior me, medical instruments, etc. at the time of the acquisition of the building of the instant hospital, and prepared a certificate of certification stating that “The Plaintiff transfers the instant hospital to the Plaintiff without any conditions such as the premium at the expiration of the lease term, etc.” (Evidence 23).

(6) After the conclusion of the above lease agreement, the Plaintiff demanded the Defendant to increase the rent, but the Defendant did not comply therewith, and the Plaintiff demanded the Defendant to return the instant hospital via B, and also filed a lawsuit against the Defendant on September 10, 2012 against the Gwangju District Court Decision 2012Gahap9241 (the judgment against the Defendant on June 28, 2013) to seek confirmation of invalidity of the transfer agreement of the instant hospital (the judgment against the Plaintiff was rendered).

7) In addition, on April 18, 2012, 2012, the Plaintiff set up a right to collateral security of KRW 200 million with respect to the building of the instant hospital as security for the accrued-type and the claim for the entrusted security deposit against light care corporation, which provided meals to the instant hospital, as well as the obligor D and the maximum debt amount.

④ In addition, there is no other evidence to deem that the Plaintiff had been engaged in counseling services for patients as a social welfare worker, or that there was a specific direction and supervision of A or B, an employer, and rather, the instant hospital was involved in the hospital’s business as an investor for B (D) who was the actual operator of the instant hospital or the instant hospital, such as lending insufficient funds, including the cost of remodeling construction, to be paid around January 2010. After the Defendant commenced the business of the instant hospital, it appears that the Plaintiff entered the instant hospital to resolve the issue of delayed payment of wages and lease-related issues.

3. Conclusion

Therefore, the claim of this case seeking confirmation that the plaintiff is an employee under the premise that he is an employee under the Labor Standards Act and the payment of wages is dismissed without any justifiable reasons. It is so decided as per Disposition by the assent of all participating Justices.

Judge Lee Jae-soo

Judges' Rights to Judge

Judges No. 54