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

[2] The case affirming the judgment below which held that Gap et al. did not constitute an employee under the Labor Standards Act in a case where the △△△△△△△ offered retirement allowance payment to Gap et al.

[1] Whether an employee is a worker under the Labor Standards Act ought to be determined by whether the form of a contract is an employment contract or a contract for employment, and whether an employee has provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Whether an employee is a subordinate relationship should be determined by determining the content of work, and whether the employer has considerable direction and supervision in the course of performing work, whether the employer is subject to the employer’s designation of working hours and place of work, whether the employee is subject to detention, whether the employer is able to operate his/her business on his/her own account, such as holding equipment, raw materials, working tools, etc., or having a third party employ a third party, and whether the employer has knowledge of the risks such as the creation of profit and loss by providing labor, whether the nature of remuneration is the subject of the employment contract, whether the basic salary or fixed wage has been determined, whether the wage has been paid to the employer, whether the employer has exclusive responsibility to provide labor, and whether the social security system is recognized as an employee, or not.

[2] The case affirming the judgment below which held that, in case where the △△△△△ office’s employee Gap, etc. retired from office, sought retirement pay, etc., on the grounds that it is difficult to recognize that the △△△△ office’s employee, who had received compensation and allowances in accordance with the guidelines for the operation of the △△△△△ manager, etc. while carrying out the entrusted contract with the △△△△△△ and mediating the conclusion of the △△ insurance contract and maintaining the contract, such as customer management, insurance premium collection, etc., and providing labor for the purpose

[1] Article 2 (1) 1 of the Labor Standards Act / [2] Article 2 (1) 1 of the Labor Standards Act, Article 61 of the Enforcement Rule of the Postal Savings and Insurance Act

[1] Supreme Court Decision 2004Da29736 Decided December 7, 2006 (Gong2007Sang, 104) Supreme Court Decision 2009Da99396 Decided April 15, 2010 (Gong2010Sang, 890) Supreme Court Decision 2010Da50601 Decided January 12, 2012 (Gong2012Sang, 245)

As shown in the Attachment (Law Firm Dakel, Attorneys last Ro-ro, et al., Counsel for the defendant-appellant)

Republic of Korea (Attorney Han-il et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2010Na3094 decided May 4, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether an employee is a worker under the Labor Standards Act ought to be determined depending on whether the form of a contract is an employment contract or a contract for employment, and whether an employee has provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Here, whether an employee has a subordinate relationship should be determined by determining the content of work, and whether the employer is subject to the rules of employment or employment regulations, etc., and whether the employer is subject to considerable direction and supervision in the course of performing work, whether the employee is allowed to operate his/her business on his/her own account, such as designating working hours and places, whether the employee is subject to detention, whether the employer is able to own equipment, raw materials, working tools, etc., or have a third party employ and act on behalf of him/her, and whether the employee has a risk, such as the creation of profit and loss by providing labor, whether the nature of remuneration was the object of work, basic pay or fixed wage, and whether the employee withheld the income tax, and whether the employee has exclusive affiliation and degree thereof, and whether the social security system is recognized as an employee.

2. The lower court, based on its adopted evidence, found the facts as indicated in its reasoning, rejected the Plaintiffs’ claim for retirement allowance, etc. based on the premise that the Plaintiffs were workers under the Labor Standards Act, on the ground that it is difficult to recognize that the △△△△ Governor, who received compensation and allowances from the Defendant, provided work for the purpose of earning wages in a subordinate relationship with the △△△△○○○○○○○○ (hereinafter “△△△△△”) by concluding an entrustment contract with each of the △△△△△○○○○○○ affiliated organizations (hereinafter “△△△△△△△”). The Plaintiffs’ work to maintain the contract, such as customer management, and post

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the recognition of workers under the Labor Standards Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The remainder of the grounds of appeal alleged by the plaintiffs in relation to the fact-finding by the court below is nothing more than misunderstanding the adoption of evidence and fact

3. Therefore, all appeals are 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.

[Attachment] List of Plaintiffs: omitted

Justices Yang Chang-soo (Presiding Justice)