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The judgment below
The part against the plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. Whether it is a worker under the Labor Standards Act shall be determined in accordance with whether the form of a contract is an employment contract or a contract for employment, and whether the substance of a labor provision relationship is a subordinate relationship to an employer for the purpose of wages in a business or workplace;
In this context, whether an employer has a subordinate relationship should be determined by comprehensively taking account of various economic and social conditions, such as determining the contents of duties, under the rules of employment or service regulations, whether an employer is subject to considerable direction and supervision during the performance of duties, whether an employer is bound by working hours and working places, whether an employer is capable of operating his/her business on his/her own account, whether an employer has a risk, such as the creation of profits and losses from the provision of labor, whether the nature of remuneration is the subject of the work itself, whether the basic salary or fixed wage has been determined and withheld, whether the continuous performance of the provision of labor and the exclusive affiliation to the employer, and whether the status of an employee is recognized under the social security system.
However, the circumstances, such as whether a basic wage or fixed wage was determined, whether a person was withheld from the labor income tax, and whether a person is recognized as an employee on the social security system, should not readily deny the employee’s nature, solely on the ground that the employer is highly likely to arbitrarily determine it by taking advantage of the economic superior status (see, e.g., Supreme Court Decision 2004Da29736, Dec. 7, 2006). 2. Reviewing the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.
Plaintiff
E, L,C, and plaintiffs Y, respectively.