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

[2] In a case where Eul, who was engaged in the business of collecting claims of Eul corporation, which mainly engages in manufacturing and selling paints, etc., sought retirement allowances against Eul corporation, the case affirming the judgment below holding that Eul's work cannot be deemed as a worker who provided Gap corporation with labor in a subordinate relationship for the purpose of wages in light of the circumstances under which Eul was entrusted with the business of collecting claims, expertise in Eul's business of collecting claims, Gap's main business, and the form of employment of Eul

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

[1] Supreme Court Decision 2005Da50034 decided Nov. 10, 2005 (Gong2005Ha, 1969) Supreme Court Decision 2006Da60793 decided Jan. 25, 2007 (Gong2007Sang, 340)

Plaintiff

Round Co., Ltd.

Suwon District Court Decision 2012Na16244 decided February 6, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Determination of whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the contract form is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided work in a subordinate relationship with the employer for the purpose of wages. Determination of whether such a subordinate relationship exists shall be made by the employer, whether the contents of work are determined by the employer, whether the employer is subject to specific direction and supervision by the employer, whether the working hours and place are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker's ownership of equipment, raw materials and work tools, etc., whether the characteristic of the work itself is the object of the work, whether the basic salary or fixed wage is determined, whether the wage is determined, whether the wage has the characteristic of the work itself, whether the wage has the characteristic of the work, whether the wage is withheld from the wage income tax, whether or not the continuous provision of the work and the exclusive status of the employer, whether or not the status of the worker is recognized by other Acts and subordinate statutes concerning social security system, and the social conditions of both parties, etc.

2. According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff’s assertion that the Plaintiff constitutes an employee under the Labor Standards Act; (b) the Plaintiff, as an external instructor, provided education on the collection of claims to his employees; (c) the Plaintiff reported the collection performance of claims to Nonparty 1, who was the auditor of the Defendant company; (d) did not receive specific instructions and supervision on the method, time, place, etc. of collecting claims; (c) the Plaintiff did not report the matters of commuting and business trip to and from the Defendant company specifically; (d) without the specific involvement of the Defendant company; (e) without the Plaintiff’s specific participation in the debt collection business; (b) the Seoul and the Seoul metropolitan area share the amount of non-performing loans in order; and (c) the Jeju-do area and Jeju-do area were the representative director of the relevant area; and (e) the Plaintiff did not have expertise in the Plaintiff’s business of collecting claims; and (e) the Plaintiff did not have expertise in the Plaintiff’s business of collecting claims; and (iii) did not have any expertise in the Plaintiff’s business of collecting claims.

In light of the above legal principles and records, the above judgment of the court below is just, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on workers

3. 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 on the bench.

Justices Lee In-bok (Presiding Justice)