2012Da79149 Retirement pay

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

Litigation trustee of the Agricultural Cooperative Asset Management Corporation

Property Management Corporation

Seoul High Court Decision 2011Na87275 Decided August 17, 2012

July 9, 2015

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Whether a person is a worker under the Labor Standards Act ought to be determined depending on whether the person provided labor in a subordinate relationship with the employer for the purpose of wages, regardless of the form of the contract. Whether a person is subordinate to the Labor Standards Act ought to be determined: ① whether the employer provides labor in a subordinate relationship with the employer for the purpose of wages; ② whether the employer determines the work contents; ② whether the employer is subject to the rules of employment or service regulations; ③ whether the employer designates the work hours and place; ③ whether the employer is bound by the employer; ④ whether the employer is able to operate his/her business on his/her own account on his/her own account, ④ whether the employer owns the equipment, raw materials, work tools, etc. or has a third party employ and act on behalf of the employer; ⑤ whether the employer has a risk, such as the creation of profit and loss, etc. by providing labor; ⑤ Whether the nature of remuneration is the subject of the work itself; ⑤ Whether the nature

It should be determined by comprehensively taking account of the economic and social conditions of both parties, such as the existence and degree of exclusive affiliation to a person and the recognition of the status as an employee under other Acts and subordinate statutes regarding the social security system, etc.: Provided, That the circumstances such as whether the basic wage or fixed wage has been determined, whether the labor income was withheld, and whether a person is recognized as an employee on the social security system, shall not readily deny the status of an employee on the ground that it is more likely for the employer to arbitrarily determine it by taking advantage of the economic superior status (see Supreme Court Decision 2004Da29736, Dec. 7, 2006, etc.).

2. According to the reasoning and evidence of the lower judgment, the following facts are revealed.

A. The Plaintiffs concluded a contract with the Agricultural Cooperative Asset Management Co., Ltd. (hereinafter referred to as "Defendant") to engage in claims collection business whenever six-month contract expires after concluding each contract with the claims collection business. The Plaintiffs conducted claims collection business from October 1, 2002 to March 31, 201; the Plaintiff B from October 1, 2002 to May 31, 2009; the Plaintiff C from November 2, 2005 to December 31, 201; and the Plaintiff D from December 2, 2002 to January 31, 201; and the Plaintiff E from August 1, 2007 to December 31, 201 to December 31, 201.

B. The claims collection sources, which concluded contracts with the Defendant for claims collection business, including the Plaintiffs, have been performing their duties in the following manner:

1) The claims collection officers are primarily engaged in the collection business of claims allocated to the Defendant. The claims collection officers worked at the office offered by the Defendant, and entered the collection business contents into the Defendant’s computer system (mms) using computers, programs, telephone calls, etc. provided by the Defendant, or carried out claims collection business through telephone calls, mail calls, text messages, etc.; 2) claims collection officers were paid a certain rate of fees according to the records of claims collection without basic pay or fixed pay; used the office of the Defendant when conducting claims collection externally; 3) claims collection officers used the office of the Defendant when conducting claims collection business; 3) the Defendant did not separately set the working hours and places of the claims collection officers, but, if necessary, allowed the claims collection officers to separately designate the Defendant’s business hours and places; however, the claims collection officers imposed a duty to report, attend education, and maintain confidentiality; and prevented any third party from doing the claims collection business. Furthermore, in addition to breach of contract provisions, the claims collection officers also set the Defendant’s non-performance of performance, lack of business performance, lack of business performance, and need for termination of business.

4) The Defendant, a corporation established for the purpose of debt collection, etc., set up a department in charge of managing education, performance, evaluation, etc. of debt collection sources within its business division, awarded products, and managed the performance of debt collection sources by warning if the performance is low, etc., through the computer system. The Defendant was able to grasp the log records, monthly performance, work performance, etc. of debt collection sources through the computer system, and supervised or urged the management staff to supervise the commuting status, work performance, etc. of debt collection sources.

C. On February 1, 2008, when the Supreme Court rendered a judgment that the debt collection source who entered into a debt collection contract with the defendant constitutes an employee under the Labor Standards Act, the defendant held a branch office meeting on February 12, 2008 in order to prepare countermeasures, and the defendant held a meeting of the branch office on February 12, 2008. The meeting records contain the following: "not bound by the time of the office of the collection source, not operating the business trip-related records, and not receiving a report on the individual collection plan and performance records of the collection source." Further, on June 13, 2008, the defendant sent to the head office and branch offices, the center, the abolition of the award system, the abolition of the performance management of the collection source system, the term and place of the collection source separately, the terms and conditions recognized as the worker status, the change of the contract, etc."

D. From February 12, 2008 to November 1, 2010, the Defendant, without officially preparing the attendance book, business trip record, current status of collection resources, etc., prepared and abolished the weekly recovery plan, which was conducted at each team, each individual’s expected achievement rate, the reasons for unpaid collection of claims, etc., and the preparation and submission of the weekly recovery plan, other than illegal collection and civil petition prevention education, and abolished the obligor’s status survey system at least three times a month. Meanwhile, the Defendant changed the form of contract entered into with the claims collection center at seven times from March 17, 2008 to November 1, 201, and the need to separately determine the time and place of the work, if necessary, the contract form changed from June 16, 2008 to the contract form, provided that it may not be deemed to have been significantly disqualified for the collection officer to have any other reason to terminate or terminate the contract, and provided that it may not be deemed to have any reason to have been significantly disqualified for the collection officer.

F. However, even after the Defendant entered into a contract in accordance with the contract form changed on June 16, 2008, it continued to maintain the team system that manages the claims collection center for each team, and could manage the claims collection center's commuting to and from work through the computer system, and some branches have managed the claims collection center's performance through "monthly educational data," "matters to which the head of the branch office is proper," and "official performance for each person in charge of the management of the claims collection center's performance, and given a reward or warning according to the performance results.

3. The following circumstances acknowledged by the record along with these factual relations, i.e., (i) the Defendant, even after the change of the contract form as of June 16, 2008, could not have a significant meaning on the form of the contract form itself, such as entering into a re-contract with the claims collector after the change of the contract form, (ii) the Defendant, as a corporation established mainly for the purchase and sale of non-performing assets, etc., and for the preservation and collection of acquired non-performing assets, etc., and (iii) the Defendant, as a corporation established mainly for the purpose of the purchase and sale of non-performing assets, etc., and for the preservation and collection of acquired non-performing assets, may be deemed as a key and important business of the Defendant’s business. Thus, the Defendant needs the personnel in charge of debt collection and the incentive to direct and supervise the claims collector’s business in order to ensure the proper performance of its business. (iii) In fact, the Defendant appears to have continued to manage the claims collection and its performance through the team system, electronic computer system, and the punishment system even after the change.

10. From January 1, 2007 to August 1, 2007, the Defendant concluded claims collection contracts repeatedly with the Defendant. The Defendant appears to have failed to adequately explain the contents of the modified contract and its legal effect, etc. When concluding claims collection contracts in accordance with the modified contract form, and there are insufficient materials to deem that the method of performing the duties of the Plaintiffs and the degree of the Defendant’s direction and supervision was substantially modified to the extent that it is possible to determine workers' identity after the modification of the contract form. ⑤ Even if the contract form changed to June 16, 2008 was deleted from the provision prohibiting third party’s agency business, it appears that it would not be practically possible to conclude claims collection contracts with the Defendant’s computer system to allow the third party to collect the duties on behalf of the head of the claims management team. 6. It is difficult to view the Defendant’s new business manual to deny the nature of the employee’s right to request collection without considering the following circumstances: (i) The Defendant’s new business manual and the changed business manual of 20.6.28.28.

4. Nevertheless, solely based on the circumstances stated in its reasoning, the lower court determined that the Plaintiffs constitute workers under the Labor Standards Act until entering into claims collection contracts in accordance with the form of contract changed to June 16, 2008, and that they do not constitute workers under the Labor Standards Act from the time they entered into a contract in accordance with the changed form as of June 16, 2008 to the time they complete the collection of rights. In so doing, the lower court erred by misapprehending the legal doctrine on workers under the Labor Standards Act, thereby adversely affecting the conclusion of the judgment. The allegation in

5. Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Park Young-young

Jeju High Court Decision 201Na1548

Justices Kim Jong-il