[1] Whether a person constitutes a worker under the Labor Standards Act even if the person did not purchase a national health insurance, national pension insurance, or employment insurance and did not pay labor income tax (affirmative)

[2] In a case where the Korea Labor Welfare Corporation paid the unpaid wages to workers on behalf of the subcontractor as substitute payment, whether the original contractor can subrogate the right to claim the unpaid wages (negative)

[1] Whether a contract constitutes a worker under the Labor Standards Act shall be determined according to whether a worker provided labor in a subordinate relationship with an employer for the purpose of wages in substance regardless of whether the contract is an employment contract under the Civil Act or a contract for work, and as long as it is recognized that a worker provided labor for the purpose of wages by being employed in a work site as a part of a work site, the fact that the worker did not purchase national health insurance, national pension insurance, employment insurance, etc. and did not pay the income tax for the purpose of wages shall not be deemed

[2] In relation to the guarantee of wage existing between the Korea Workers' Compensation and Welfare Service and workers, comprehensively taking account of the provisions of Articles 14, 15, 17, and 37 of the Labor Standards Act, Articles 2, 3-2, 7, 8, 14, and 23 of the Wage Claim Guarantee Act, and Article 9 of the Industrial Accident Compensation Insurance Act, the Minister of Labor or the Korea Workers' Compensation and Welfare entrusted with his authority shall regard the original contractor as the payment and collection of the charges and other dues pursuant to the Wage Claim Guarantee Act, and the Korea Workers' Compensation and Welfare Service, which has paid substitute payments to workers, shall not be construed to mean that the Korea Workers' Compensation and Welfare Service, which has paid substitute payments, may subrogate the original contractor of the expanded work, may not receive a dividend in the course of voluntary auction against

[1] Article 14 of the Labor Standards Act / [2] Articles 14, 15, 17, and 37 of the Labor Standards Act; Articles 2, 3-2, 7, 8, 14, and 23 of the Wage Claim Guarantee Act; Article 9 of the Industrial Accident Compensation Insurance Act

[1] Supreme Court Decision 2000Da27671 decided Jul. 26, 2002 (Gong2002Ha, 2031)

National Bank Co., Ltd. (Law Firm Pok, Attorneys Jung-chul et al., Counsel for the defendant-appellant)

Korea Labor Welfare Corporation

June 13, 2003

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

In the distribution procedure of the real estate auction case No. 19605, Gwangju District Court's netcheon Branch 2001, the amount of dividends to the defendant 119,000,000 out of the amount of dividends of 152,716,950 won among the dividend table prepared on April 24, 2002, shall be deleted, and the amount of dividends of the plaintiff 73,720,029 won shall be corrected to KRW 192,720,029.

1. Basic facts

A. On September 28, 2001, the defendant paid 33,716,950 won as substitute payment under the Wage Claim Guarantee Act to 10 persons, including the non-party creation, who are the management employees of the Korea Land Corporation (hereinafter referred to as the "Korea Land Corporation"), and on November 13, 2001, on the premise that 87 persons, such as the non-party river iron, etc., were Korean field workers, the defendant paid 119,00,000 won as substitute payment for the total of 119,00,000 won, which is part of the unpaid three-month wage, as stated in the attached substitute payment statement, to the above 87 persons on November 13, 200 under the premise that the non-party is the field workers in Korea. The defendant filed an application for demand for distribution against the above 152,716,950 won (=3,716,950 won,9,100,000 won) in subrogation of the above non-party.

B. On April 24, 2002, the aforementioned court prepared a distribution schedule with the content that distributes the amount of KRW 197,290 to the net City Mayor (the pertinent tax), the holder of the right to deliver (the appointed party), KRW 21,672,640, and KRW 152,716,950 to the Defendant (the appointed party) with the second priority, and KRW 73,720,029 to the Plaintiff, the holder of the right to apply for the auction of the real estate, who is the right to request the auction of the real estate, and KRW 3,029, respectively, to distribute the amount of KRW 248,30 to the Plaintiff, the mortgagee of the right to request the auction of the real estate.

C. On the date of the above distribution, the Plaintiff raised an objection against KRW 119,00,00 among the dividends against the Defendant, and filed a lawsuit of demurrer against the distribution of this case.

[Ground for recognition] Facts that the parties concerned are deemed to have led to confession because they did not dispute or clearly challenge, Gap evidence No. 1, and facts that are obvious to this court

2. The plaintiff's assertion and judgment

A. First, since it is unclear whether 87 persons, such as the Non-Party Steel Co., Ltd. (hereinafter referred to as "non-party") are true workers falling under Article 37 (2) of the Labor Standards Act, the plaintiff made a substitute payment on behalf of the non-party on behalf of the non-party in Korea without sufficient review even though the defendant did not have any reason to pay the non-party's overdue wages. Thus, the distribution court argues that it is improper to distribute the amount of KRW 119,00,000 corresponding to the portion subrogated by the defendant on the premise that the non

The plaintiff filed a lawsuit of demurrer against distribution is liable to assert and prove facts constituting grounds for objection against distribution. The non-party's assertion is without any evidence to acknowledge that the defendant paid substitute payment to the non-party despite the non-party's non-party's non-party's non-Korean subcontractor's non-Korean workers. Rather, in full view of the results of each fact inquiry about Eul's testimony of Kim Jong-won, Kim Jong-won, Kim Jong-si's testimony, Kim Jong-si's office of labor, net city sewage management office, bankruptcy administrator of the same family construction industry, bankruptcy administrator of the same family construction industry, and Ycheon-si, the non-party can not claim that the non-party's work for water-purification facilities and lot construction work among the 3rd-level expansion expansion construction work ordered by the same family construction industry company (hereinafter "Dong-dong construction"), and the non-party's assertion that the non-party's work at the construction site is not a worker under the Labor Standards Act's employment insurance contract or employment insurance contract, regardless of whether the non-party's non-party's labor.

B. Next, the plaintiff's employer in relation to the guarantee of wage existing between the defendant and the non-party is a Dong building which is the original contractor for the extension of the three-stage waterworks from the net city under the main sentence of Article 9 (1) of the Industrial Accident Compensation Insurance Act applied mutatis mutandis under Article 3-2 of the Wage Claim Guarantee Act. Thus, the defendant claims the non-party for substitute payment of KRW 119,00,000 paid to the non-party to Dong building, and there is no right to receive dividends in the distribution procedure of this case. However, in light of each provision of Articles 14, 15, 17, 37 of the Labor Standards Act, Articles 2, 3-2, 7, 8, 84, and 23 of the Wage Claim Guarantee Act, and Article 9 of the Industrial Accident Compensation Insurance Act, the Minister of Labor or the Korea Workers' Compensation & Welfare Corporation entrusted with its authority shall not be construed as the original contractor or collection of charges under the Wage Claim Guarantee Act, and the non-party's claim for substitute payment of the non-party.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Sung-chul (Presiding Judge)