Plaintiff 1 and one other (Attorney Han-chul, Counsel for the plaintiff-appellant)

Public Records Corporation (Attorney Jeong-sung et al., Counsel for defendant-appellant)

July 21, 2017

1. The defendant shall pay to the plaintiff 1 5,381,370 won, and to the plaintiff 2 9,601,919 won with 20% interest per annum from December 12, 2015 to the day of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiffs, and 20% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 29,477,95 won, 44,416,770 won, and 20% interest per annum from December 12, 2015 to the day of complete payment.

1. Basic facts

A. The plaintiffs are those who worked as a part-time English instructor at the "○○ Private Teaching Institute" located in Namyang-si ( Address 1 omitted): (1) from January 1, 2008 to April 201; and (2) from November 26, 2012 to November 25, 2015, it is reasonable to view that the above plaintiffs were not working at the "○○ Private Teaching Institute" for acquiring doctor's degree; and (3) from August 1, 2004 to November 27, 2015, it is reasonable to deem that the above plaintiffs were working for the above 20th anniversary of the above 10th anniversary of the above 20th anniversary of the Plaintiff's employment relationship; and (4) from August 1, 2014 to November 27, 2015, the above plaintiff's employment relationship was terminated by 14th of the 20th of the above 20th of the 2015.

B. The operator of “○○ Private Teaching Institute” was changed to the Defendant on November 2015.

C. The Plaintiffs, in principle, proceeded with the English lecture for three days a week, four hours a day, and four hours a week. They engaged in questioning and answers once a week, and they proceeded with four hours a week from March to September of each year.

D. The Plaintiffs received monthly salary of the end of the month on the fifth day of each month, and the amount was not fixed, but exclusively determined based on the lecture time and questioning response time of the Plaintiffs. However, in the case of special lectures, 50% of the total lecture fees paid by students, regardless of the lecture time, was paid as lecture fees. The Plaintiffs’ hourly lecture fees were KRW 50,000 for the year 2008, KRW 51,000 for the year 2009, KRW 53,000 for the year 209, and KRW 40,000 for the year 2010 to February 2015, and KRW 40,000 for the year 20,000 for the question response service from March 2015.

E. The monthly lecture time and inquiry response time of the plaintiffs calculated based on the plaintiffs' salary details submitted by the defendant are as shown in the attached Table 1-1 in the case of plaintiffs 1, and as shown in the attached Table 2-1 in the case of plaintiffs 2.

【Ground of recognition】 The fact that there has been no dispute, Gap 1 through 5, 10-3, 10-13, 10-14, 10-26, 10-28, 10-30, 10-34, 10-49, Eul 1,2, 4, 6 through 12, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiffs

1) Since the Plaintiffs’ labor relations were succeeded to the Defendant from public correspondence, the Defendant must pay the Plaintiffs weekly holiday allowance, annual holiday work allowance, retirement allowance, and advance notice of dismissal. However, the Plaintiffs seek payment of weekly holiday allowance, annual holiday work allowance, and retirement allowance from March to September of the Plaintiffs’ special courses.

(ii) weekly holiday allowances;

The Plaintiffs’ weekly holiday allowances should be calculated by multiplying the Plaintiffs’ “one-day working hours” calculated by dividing the Plaintiffs’ “one-day working hours” by six days by the Plaintiffs’ hourly ordinary wages. The amount of the Plaintiffs’ weekly paid holiday allowances so calculated is as shown in attached Table 1-2 in the case of Plaintiff 1, and in the case of Plaintiff 2, as shown in attached Table 2-2 in the case of Plaintiff 2.

(iii) annual leave work allowances;

The annual leave allowance of the plaintiffs shall be calculated by multiplying the number of days of annual leave of the plaintiffs calculated pursuant to Article 60(2) of the Labor Standards Act by the plaintiffs' "one day's working hours" and the hourly ordinary wage. The amount of the annual leave allowance of the plaintiffs calculated as above is as shown in the corresponding column of attached Table 1-2 in the case of plaintiffs 1, and in the case of plaintiffs 2, as shown in attached Table 2-2 in the case of plaintiffs 2.

(iv) Retirement pay;

The retirement allowances of the plaintiffs shall be calculated by multiplying the average wage calculated by adding the plaintiffs' special lecture fees, the weekly holiday allowances, and the annual holiday leave allowances to the plaintiffs' general lecture treatment by the number of years of continuous service and the payment rate of retirement allowances. The amount of the plaintiffs' retirement allowances calculated as such shall be as shown in the corresponding column of attached Table 1-2 in the case of the plaintiffs 1, and as shown in the corresponding column of attached Table 2-2 in the case of the plaintiffs 2.

(v)pre-paid allowances of dismissal;

The plaintiff 2's pre-employment allowance shall be calculated by multiplying the above plaintiff's weekly wage by 30 days/7 days, and the amount of the pre-employment allowance for the above plaintiff's dismissal shall be as shown in the attached Table 2-2.

B. Defendant

1) The defendant did not succeed to the employment relationship of the plaintiffs from public confidence.

2) Since the Plaintiffs’ contractual work hours per week are less than 15 hours, the Plaintiffs cannot seek payment of weekly holiday allowances, annual holiday work allowances, and retirement allowances pursuant to Article 18(3) of the Labor Standards Act and the proviso of Article 4(1) of the Guarantee of Workers’ Retirement Benefits Act (hereinafter “Retirement Benefits Act”).

3. Determination

A. Whether the defendant succeeded to the employment relationship of the plaintiffs from public confidence

In determining who is liable to pay wages, retirement allowances, etc. to a certain employee, the actual labor relationship should be based, such as the concept of an employee under the Labor Standards Act, regardless of the form of a contract or the contents of relevant laws and regulations, and in such a case, various factors for determining whether an employee is an employee should be comprehensively considered (see Supreme Court Decision 2006Do300, Dec. 7, 2006).

In light of the aforementioned legal principles, it is reasonable to view that the Defendant’s ○○○○○○○○○○○○ 1 was the Defendant on November 2015, and that Nonparty 1 was the Defendant’s head office of Nonparty 2, including Nonparty 2, 3, 10-3, 10-24, and 10-2, and the entire purport of the evidence and arguments that Nonparty 1, 2, 4-1, 4-2, 17-2, and 17-2, and that Nonparty 2 was the Defendant’s Defendant’s “○○○ 5,” and that Nonparty 1 was the Defendant’s Defendant’s business income at the ○○ 2, 5, which was the Defendant’s head office of Nonparty 1, 205, and that Nonparty 2 was the Defendant’s business income at the ○○○ 5, supra, and that Nonparty 1 was the Defendant’s Defendant’s business income at the 6th 2, 2015.

According to the evidence Nos. 14, 15, and 16, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, and Nonparty 8, who worked for the “○○ Private Teaching Institute”, retired on November 12, 2015, and public confidence paid retirement allowances to the said retired person, and the Defendant’s implementation of the Human Data Works on the building located in the “○○ Private Teaching Institute” on November 1, 2015 and December 2015 may be recognized. However, it is insufficient to reverse the above judgment only with the facts of recognition and evidence No. 17-1.

B. Whether the contractual work hours per week by the Plaintiffs are less than 15 hours

1) Whether the plaintiffs' special lecture hours can be viewed as contractual work hours

Unlike regular lectures, the fact that the plaintiffs received 50% of the total tuition fees paid by the students regardless of the plaintiffs' lecture hours as lecture fees is as seen earlier, and according to the purport of Eul evidence and the whole pleadings, the special lecture implemented in the "○○ Private Teaching Institute" is for the students, such as the plaintiffs, after consultation with the defendant individually at their own discretion, and is conducted for public relations, and recruited students. The whole lecture does not proceed with the special lecture, but it is different from the number of students or lecture fees for each instructor, and in relation to such special lecture, the defendant merely provides lecture rooms to the instructors and check the students and collect lecture fees on behalf of them. In light of this, the plaintiffs as the special lecture instructors cannot be viewed as a worker who provides work to the defendant for the purpose of earning wages in a subordinate relationship, unlike their status as regular lecturers (see Supreme Court Decision 96Do732, Jul. 30, 196, 196).

The evidence evidence Nos. 6-2 and 7-2 alone is insufficient to reverse the above judgment, and there is no other reflective evidence.

2) The Plaintiffs’ contractual work hours per week

Article 18(3) of the Labor Standards Act provides that “Article 55(1) and Article 60(1) shall not apply to workers whose contractual work hours per week averaged for less than 15 hours,” and Article 4(1) of the Retirement Benefits Act provides that “An employer shall establish one or more retirement benefit systems to pay wages to retired workers: Provided, That this shall not apply to workers whose continuous work period is less than one year, or those whose contractual work hours per week averaged for less than 15 hours per week is less than 15 hours, respectively.” Thus, if the average weekly work hours per week is less than 15 hours, the average weekly work hours per week during four weeks prior to the date on which the cause for calculation occurred shall be determined based on whether the contractual work hours per week per week are less than 15 hours (see Supreme Court Decision 2003Do5169, May 13, 2005).

The plaintiffs' monthly lecture time and inquiry response time calculated based on the plaintiffs' monthly lecture time and response time based on the plaintiffs' wages submitted by the defendant as objective data are as shown in attached Table 1-1 in case of plaintiffs 1, and in case of plaintiffs 2, as shown in attached Table 2-1 in case of plaintiffs 2. However, considering that the plaintiffs' labor provided to the defendant is strong, it is easily anticipated that considerable time is required for research and data collection to prepare lectures due to the nature of the plaintiffs' work. In principle, the plaintiffs' attendance at the "○○ Private Teaching Institute" for 3 days per week in order to make lectures every 4 hours per day, in consideration of the fact that the plaintiffs' attendance at the "○○ Private Teaching Institute" for 3 hours per week, i.e., three hours per week in addition to the above monthly lecture time and response time of the plaintiffs' monthly question response, the plaintiffs' regular work hours per week were always 15 hours per week or more, but there is no evidence to acknowledge it differently.

In such a case, the monthly average 4.3452 weeks (i.e., 365 days ¡À 12 months ¡À7 days, and minority number Fifth place). Thus, 13 hours per month (i.e., 3 hours x 4.3452 weeks x minority number hereinafter the same shall apply) shall be added to the sum of the monthly lecture and questioning response time of the plaintiffs in attached Table 1-1, 2-1, and the amount calculated by dividing that by 4.3452 weeks, the average number of weeks per month, would be the contractual work hours per week of the plaintiffs (in this way, the contractual work hours per week of the plaintiffs shall be calculated for the convenience of calculation).

C. As to the plaintiffs' claim for weekly holiday allowances

The Plaintiffs received wages in the form of monthly wage, and the Plaintiffs’ right to claim weekly holiday allowances also arise monthly. As such, by examining whether the contractual work hours per week are more than 15 hours per month, the Plaintiffs’ right to claim weekly holiday allowances and the amount thereof should be determined on a monthly basis. In such a determination, the Plaintiffs’ right to claim weekly holiday allowances may arise at least 52 hours (=15 hours x 4.3452 - 13 hours) in the attached Table 1-1.

1) In the case of Plaintiff 1

In the case of Plaintiff 1, the month that satisfies the above requirements is March 2013 through August (six months, May 2013, 2013; however, considering the fact that the sum of the lecture time and the interpellation answer time on April 2013 and June 2013 is at least 52 hours, it is reasonable to see that the sum of the lecture time and interpellation answer time on May 2013 is at least 52 hours), April 6, 2014, March 5, 2015 (3 months), March 5, 206, and August 8 (4 months), and if the amount of holiday allowances is calculated according to the method sought by the said Plaintiff, it is KRW 5,97,099 as listed in the following table:

The number of weekly holiday allowances for the year 2013 ± (14 hours per week) ± (14 hours per week) ± (14 hours per week) 】 (14 days per week ± (14 days per week ± 2013 ± 6 days per week 】 [ (53,000 x 12 hours + 26,50 x 26), 14 hours) 】6 months 】 4.352 weeks 2,93,842 ±42 】 14 hours per week ± (14 hours ± 6 days per week ± 53,000 x 12 hours x 26,500 x 2 hours) ± 14 hours per week) 】 3 months 】 4.342 weeks 496, 9215 ± 14 hours per week 】 14 】 】 14 hours per week 】 】 2004 hours per week 】 45 hours per week 】

Note 1) Calculation Form

Note 2) Amount (source)

However, the defendant's defense against the plaintiff 1's claim for weekly holiday allowances is that the period of filing the lawsuit in this case or the date of receiving provisional seizure against the plaintiff's claim against the defendant is July 26, 2016. The above plaintiff was paid monthly pay for the past five months, and the period of claiming weekly holiday allowances is three years. Thus, the above plaintiff's claim for weekly holiday allowances that became due before July 26, 2013, namely, the claim for weekly holiday allowances that became due before March 26, 2013, i.e., the above plaintiff's claim for weekly holiday allowances 1,95,895 x (14 hours ± 6 days ± (14 hours ± 12 hours x 12,50 x 26,50 x 250 hours) x 949 x 9494 x 95 x 95 94 x 94 94 x 95 x 9495 x 9494 x 94 x 94 x 5 .

2) For Plaintiff 2

In the case of Plaintiff 2, March through September (7 months, May 2013) of 2013 to meet the above requirements, but it is reasonable to deem that the sum of lecture hours and answers to questions is at least 52 hours on May 2013, 2013, 3, 4, 6 through 9 (6 months), and 4, 6, and 7 (3 months) of 2015. If the amount of weekly holiday allowances is calculated according to the method sought by the said Plaintiff, it is KRW 7,616,410 as listed in the following table.

The number of weekly holiday allowances for the year 2013 ± (14 hours ±6 days) 】 [(53,00 won x 12 hours x 26,500 won)] 】 [7 hours 】 4.3452 weeks x 3,492,816 2014 】 (14 hours ± 6 days) 】 [53,000 won x 26,500 won x 26,50 hours)] 】 6 months 】 4.342 weeks 】 93,842 ± 2015 】 [40,00 won x 200 hours x 20,000 won x 26,50 won x 46 days) 】 414 hours 】 206 hours 】 41436 hours 】 4146 hours 】 204

Note 3) Calculation Form

However, the defendant's defense against the plaintiff 2's claim for weekly holiday allowance has been made with respect to the completion of the extinctive prescription. Since the above plaintiff's claim for weekly holiday allowance which became due before July 26, 2013, namely, the claim for weekly holiday allowance, i.e., the claim for weekly holiday allowance, i., the claim for weekly holiday allowance, i.e., the claim for weekly holiday allowance, e., the amount of KRW 1,95,895, which became due before March 26, 2013, should be extinguished for the reasons as seen earlier, the above plaintiff's claim for weekly holiday allowance (= KRW 5,620,515) remains.

D. As to the plaintiffs' annual leave allowance claim

Article 60(2) of the Labor Standards Act provides that "an employer shall grant an annual paid leave of one day to any employee who has continuously worked for less than one year or any employee who has continuously worked for less than 80 percent of a year, one-day paid leave of one month during which he/she has continuously worked for less than one year." As such, by examining whether the contractual work hours per week of the Plaintiffs are not less than 15 hours, the determination of whether the Plaintiffs’ right to claim annual paid leave allowances has occurred and the amount thereof has been made. In such a determination, the Plaintiffs’ monthly paid leave of one-1, 2-1 and the attached Table 1-1 should be made by examining whether the contractual work hours per week are not less than 15 hours. In such a determination, the Plaintiffs’ monthly paid leave of one-half hours (i.e., 15 hours x 4.342 weeks - 13 hours per week) causes the Plaintiffs’ right to claim monthly paid leave allowances (i.e., the Plaintiffs’ right to claim annual paid leave of three days per week.

1) In the case of Plaintiff 1

In the case of Plaintiff 1, March 2013 through August (six months, May 2013, but it is reasonable to deem that the sum of lecture hours and answers to questions is at least 52 hours on May 2013, 2013, April 6, 9 (3 months), and March 5, 2015 (4 months). If the amount of annual leave leave pay is calculated according to the method sought by the said Plaintiff, it is KRW 1,380,16 as indicated in the following table.

The annual leave allowances for the year 2013 (14) (14 hours ±6 days) ± (14 hours) ± (14 days) 】 [14 hours] 】 [689,00 annual leave allowances for the year 2014 (14 hours ±6 days) 】 [14 hours] 】 689,00 】6 months 】 689,000 】 684 hours ± 6 days (12 hours x 26,500 x 2 hours) ± 14 hours] 】 344,500 】 34 months 】 344,505 x 6 days (14 hours ± 40 hours ± 6 days) 】 [40,000 】 200 x 200 x 2 hours) 】 46,6666,3686, 1668

Note 4) Calculation Form

The defendant's defense as to the claim for annual leave allowance of the plaintiff 1 is that the period of extinctive prescription expires. The period of the claim for annual leave allowance of the plaintiff 1 is the day following the date on which the non-performing market price of the annual leave right acquired becomes final and conclusive (see Supreme Court Decision 94Da26721, Dec. 21, 1995). Even if the annual leave right is determined based on the monthly work performance, the day on which the non-performing market price of the annual leave right becomes final and conclusive shall be the last day of the relevant work year. Thus, even if the right to annual leave allowance of the first day occurred based on the work performance of March 2013, the starting day of the extinctive prescription period shall be January 1, 2014, and since the lawsuit of this case was received on July 26, 2016, the aforementioned defense by the defendant is without merit.

2) For Plaintiff 2

In the case of Plaintiff 2, March through September (7 months, May 2013) of 2013 to meet the above requirements, but it is reasonable to deem that the sum of lecture hours and answers to questions is at least 52 hours on May 2013, 2013, 3, 4, 6 through 9 (6 months), and 4, 6, and 7 (3 months) of 2015. If the amount of annual leave leave allowances is calculated according to the method sought by the said Plaintiff, it is KRW 1,752,833 as shown in the following table.

The amount of the annual leave allowances for the year 2013 (14 hours ±6 days) (14 hours ±6 days) 】 [(53,000 + 12 hours x 26,500) + 14 hours] 】 803,833 x 2014 (14 hours ±6 days) 】 [14 hours ±6 days] 】 [(53,000 won x 12 hours x 26,500 hours)] 】 689,000 ± 689,000 x 6 days (14 hours) 】 [40,000 won x 20,000 won x 2 hours) 】 36 months ± 306,3782,3853] 】

Note 5) Calculation Form

As to the plaintiff 2's claim for annual leave allowance, the defendant made a plea for the completion of extinctive prescription. As seen above, the defendant's above defense is without merit.

E. Regarding the plaintiffs' retirement allowance claim

With respect to whether the average weekly working hours of the plaintiffs' four weeks prior to the date of their retirement are less than 15 hours, it is about November 12, 2015 in the case of plaintiffs 1, and about November 27, 2015 in the case of plaintiffs 2. In the case of plaintiffs 1, the monthly lecture hours and inquiry response hours of the plaintiffs calculated based on the details of the plaintiffs' wages submitted by the defendant are 31 hours prior to October 2015, 16 hours prior to November 2015, 30 hours prior to and after October 2015 in the case of plaintiffs 2, 30 hours prior to and after the date of their retirement, 20 hours prior to the date of their respective monthly lectures and inquiry, although the time of their retirement is not verified by objective data, the plaintiffs' retirement hours are less than 13 hours prior to the retirement hours of the plaintiffs 135 hours prior to the retirement hours of the plaintiffs 14 hours prior to the date of their retirement.

F. As to the Plaintiff 2’s claim for advance notice of dismissal allowance

Until November 27, 2015, Plaintiff 2 worked for “○○ Private Teaching Institute” as seen earlier, and there is no evidence to acknowledge that the Defendant had given notice of dismissal from November 27, 2015 to 30 days prior to the dismissal. As such, the Defendant shall pay the said Plaintiff the advance notice of dismissal allowance, and the fact that the amount of the advance notice of dismissal allowance to be paid by the said Defendant to the said Plaintiff is 2,228,571 does not conflict between the parties.

4. Conclusion

The defendant shall pay to the plaintiff 1 a total of KRW 5,381,370, and annual leave allowances of KRW 5,620,515, annual leave allowances of KRW 5,620,515, annual leave allowances of KRW 1,752,83, annual leave allowances of KRW 228,571, and delay damages calculated at the rate of 20% per annum from December 12, 2015, which is the day following the 14th day after the retirement date of plaintiff 2 seeking by the plaintiffs, to the day of complete payment.

The plaintiffs' claims are justified within the scope of the above recognition, and the remaining claims are dismissed as they are groundless.

[Attachment]

Judges Han Jae-sung

1) (Time for a week, and time for responding to questions and answers ± 6 days) ¡¿ [(hours of lecture per week 】 weekly lecture hours + (hours of lecture 】 weekly lecture hours) + (hours of response to questions and answers to one week)] ¡À) hours of lecture and time for responding to questions and answers to one week] ¡À during the period from March to September, in which the total amount of time for responding to questions and answers to questions is not less than 52 hours ¡¿ the average number of weeks per month;

Note 2) The amount of less than KRW 2 is but not more than the same.

Note 1) Each Note is as described in paragraph 1.

4) (Time for a week and time for responding to questions and answers ± 6 days) ¡¿ [(hours of lecture per week 】 weekly lecture hours + (hours of lecture 】 weekly lecture hours) + (hours of response to questions and answers to one week 】 Hours of response to questions and answers to one week)] ¡À number of months in which the sum of the time for lectures and the time for responding to questions during the period from March to September is not less than 52 hours.

Note 5) As described in each Note 4).