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1. Of the instant principal lawsuit, retirement allowances of the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff) amounting to KRW 11,70,403.
Reasons
The main lawsuit and counterclaim are also examined.
1. The parties' assertion
A. On April 1, 2015, the Plaintiff (A Co., Ltd. divided the educational service division among the target businesses, and established B Co., Ltd. as a party to A Co., Ltd. prior to the division date, the Defendant asserted that the content of the business division, such as selecting teaching materials on his own, was not subject to the Plaintiff’s direction and supervision. The Defendant did not stay in a private teaching institute for his own subject without the fixed time of commuting to and from work. In addition, the Plaintiff did not freely teach another private teaching institute during the period of lectures at the private teaching institute operated by the Plaintiff. In light of the fact that the Plaintiff received tuition fees for basic wages or fixed wages without the fixed time, and that the Plaintiff paid the income tax, the Defendant provided the Plaintiff’s labor for the purpose of his/her own selection of teaching materials on his/her own. In addition, the Defendant did not have been subject to the direction and supervision on his/her own, and did not have been in charge of any other incidental business than the lecture of the subject. In light of the fact that the Plaintiff paid the income tax on his/her own basis or fixed wages.
Therefore, the Act on the Guarantee of Workers' Retirement Benefits, which is premised on employment relations between the Plaintiff and the Defendant, is not applicable, so there is no obligation to pay the Plaintiff a retirement allowance of KRW 27,313,687
B. The Defendant asserted that he was employed by the Plaintiff, and then retired from the Plaintiff’s office, from December 26, 2006 to November 6, 2012.
Therefore, the Plaintiff’s retirement allowance of KRW 15,613,284 and its amount from November 21, 2012 to the date of full payment, which is the day following the expiration of 14 days from the date of retirement.