[1] The standard for determining whether an employer who is obligated to pay an employee and a retirement allowance under the Labor Standards Act is an employer

[2] The case holding that the employer who is obligated to pay retirement pay to the office employees is a office-based joint office

[3] The scope of wages as the basis for calculating average wages

[1] Whether a worker constitutes a worker under the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996), regardless of the form of a contract, shall be determined based on whether a worker provided labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether the contents of work are determined by the employer and are subject to the rules of employment, service rules, personnel regulations, etc., whether the employer is specifically and directly directed and supervised by the employer in the course of performing work, whether the worker is designated working hours and place of work and is detained by the employer, whether the worker is subject to the remuneration itself, whether the basic salary or fixed wage is determined, whether the wage is withheld from the wage income tax, whether the wage has a basic wage or fixed wage, whether the wage has the continuity and degree of the employment relationship, whether the status of the worker is exclusive to the employer, whether the economic and social conditions of the parties concerned, and whether the employment relationship is paid to the worker should be determined based on a comprehensive consideration of the aforementioned legal principles and regulations.

[2] The case holding that the employer who is obligated to pay retirement pay to the office employees is a office-based joint office

[3] The total amount of wages, which is the basis for the calculation of average wages, are money and other valuables paid by an employer to an employee as the object of work, and the obligation to pay to an employee is continuously and regularly included in all, regardless of its name, regardless of whether it is the money and other valuables paid by a person other than an employer or the object of work. On the other hand, the amount of compensation for actual expenses or the amount of money paid by an employer for the additional expenses incurred by the employee in performing his/her duties in a special working condition or environment is not paid as the money and other valuables or the object of work.

[1] Article 14 (see current Article 14), Article 15 (see current Article 15), Article 28 (1) (see current Article 34) of the former Labor Standards Act (Amended by Act No. 5245, Dec. 31, 1996); Article 14 (see current Article 14), Article 15 (see current Article 15), Article 28 (1) (see current Article 34); Article 20 of the former Enforcement Rule of the Act (Amended by Act No. 252, Feb. 24, 197); Article 7 (see current Article 8), Article 12, Article 13, and Article 19 of the former Enforcement Rule of the Act (Amended by Act No. 5245, Dec. 31, 1996); Article 25 of the former Enforcement Rule of the Act (Amended by Act No. 976, Feb. 16, 197); Article 9 of the former Enforcement Rule of the Act (see current Article 97)

[1] Supreme Court Decision 97Da7998 delivered on November 28, 1997 (Gong1998Sang, 46), Supreme Court Decision 97Da17575 delivered on December 26, 1997 (Gong1998Sang, 396), Supreme Court Decision 96Da54294 delivered on February 27, 1998 / [3] Supreme Court Decision 91Da5587 delivered on April 14, 1992 (Gong1992, 1595Sang, 2111), Supreme Court Decision 95Da19256 delivered on May 14, 1996 (Gong1987 delivered on May 14, 1996), Supreme Court Decision 94Da5934 delivered on May 12, 1995 (Gong195Da192537 delivered on May 14, 1996)

Plaintiff 1 and one other (Attorney Park Young-sik, Counsel for the plaintiff-appellant)

Korea

Seoul Enforcement Officer’s Joint Office (Attorney Final Confession, Counsel for defendant-appellant)

Seoul High Court Decision 96Na43166 delivered on November 6, 1997

All appeals by the plaintiffs and the defendant Seoul Execution Officer are dismissed. The costs of appeal by the plaintiffs are assessed against the plaintiffs, and the costs of appeal by the joint office of the defendant Execution Officer are assessed against the same defendant.

We examine the grounds of appeal.

1. As to the Plaintiff 2’s appeal against Defendant Republic of Korea

Plaintiff 2’s appeal against Defendant Republic of Korea, but Plaintiff 2 and his agent did not submit any ground of appeal against Defendant Republic of Korea. Therefore, Plaintiff 2’s appeal against Defendant Republic of Korea is without merit.

2. As to whether the joint office of Defendant Seoul Execution is an employer under the Labor Standards Act who is liable to pay retirement allowances to the Plaintiffs (Defendant’s ground of appeal No. 1)

Whether an employee is a worker under the former Labor Standards Act (amended by Act No. 5245, Dec. 31, 1996; hereinafter the same) which was in force at the time of retirement of the Plaintiffs, regardless of the form of a contract, shall be determined based on whether the employee provided labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether the contents of work are determined by the employer and shall be subject to rules of employment, service regulations, personnel regulations, etc., whether the employee is subject to specific and direct direction and supervision in the process of performing work, whether the working hours and place are designated by the employer and are detained by the employer, the ownership of equipment, raw materials, work tools, etc., the ownership of basic salary or fixed wage has the characteristic of the employee itself, the existence and degree of the continued provision of labor, the existence of the status of the employee as a worker under other Acts and subordinate statutes, and the economic and social conditions of the two parties, etc. shall be comprehensively taken into account in determining whether the employee is subject to wages.

According to the reasoning of the judgment below, the court below, based on the evidence in its judgment, shall establish the office-based joint office of 1960, Seoul Civil District Court's office-based joint office of November 29, 1967, and Seoul office-based joint office of October 26, 1973 (the title of the joint office of Seoul office-based joint office and Seoul Execution Officer was changed successively; hereinafter the defendant Seoul Execution Officer's office shall be referred to as the defendant office; hereinafter the defendant's office-based joint office shall be changed to the name of the office-based joint office of 702, No. 702 of August 31, 1961 (hereinafter referred to as the "Act"), and the office-based joint office-management officer's name and the office-based management officer's office-based joint office-based office-based work under the Act No. 2552 of February 24, 197 (hereinafter referred to as the "Act No. 1973, Dec. 36, 1973).

(1) The fact that a joint office has been recommended by the head of the Seoul District Court and appointed and issued in the name of the head of the joint office with the permission of the head of the Seoul District Court, regardless of the changes in the provisions prescribed by the Act and the Enforcement Rules thereof (Supreme Court Regulations).

(2) In principle, the clerical staff of a joint office shall assist the affairs of a specific collection and delivery officer who agreed upon at the time of appointment, and shall carry the certificate of identification issued by the Seoul District Court and the official title officer in performing their duties.

③ In accordance with the 1973 Act and the Enforcement Rule of the 1973 Specialized Act, the Plaintiffs were subject to disciplinary action of suspension from office and reduction of salary against a joint office once, and all 27 employees belonging to the Seoul Central District Court and the Si/Gun/Gu branch offices at the time established the Seoul Central District Court (hereinafter referred to as the “Rules of 1973”) by enacting a new rules (hereinafter referred to as the “Rules”). After the establishment of the Seoul Central District Court, the Plaintiffs were changed to assist the office of the Seoul Central District Court or the branch offices at the time of appointment according to the personnel order of the head office, or transferred to the office of the Seoul Central District Court or the branch offices at the time of appointment of the head office. They were subject to a new disciplinary action of suspension from office and reduction of salary from a joint office on October 4, 1980.

(4) Employees on the pedals shall retire from their office upon retirement, and, except in extenuating circumstances, shall undergo the procedure for permission for the head of a law school and have been employed as an office worker for other pedals and continued to work.

⑤ On or before June 30, 1973, it is not clear that the agent for collection and delivery prior to the due date received wages from any individual or joint office (hereinafter referred to as the Dong/Saluri Joint Office established in 1960 and the Seoul District Court's Office established in November 29, 1967). However, from July 1, 1973 when the system of the office personnel for collection and delivery was implemented, the joint office has separately enacted the remuneration regulations to determine the amount of remuneration for the office personnel at the general meeting, and accordingly, the office personnel for collection and delivery have received the principal salary, job allowances and bonuses from the defendant's office from time to time at the general meeting of the defendant's office.

6. The Seoul office of Calalalty established a retirement allowance system under which the amount calculated by multiplying the average wage corresponding to one-third of the total wages paid during the three months preceding the month in which the reason for retirement occurred by the number of years of continuous service, which was revised as of December 20, 1980, is deducted by the total amount of retirement allowances and conversion money paid under the National Pension Act, as retirement allowances.

7. The head of the office, who is a member of the Seoul office, was registered as a business operator in the name of each individual and paid income tax. The fact that each of his office employees has withheld the income tax on his office employees.

Then, since the enforcement of the law in 1961, it is stipulated that there may be an office worker or an office worker for supporting the work under his own responsibility, and if the office worker wants to appoint and retires, the office worker shall be deemed to be dismissed, and if the office worker retires, the office worker shall be deemed to be dismissed, and since the office worker who is an individual business operator withheld his earned income from the office worker, each worker of the office worker appears to be the employer of the office worker, but considering the substance of labor relations, it is found that the office worker of the office worker is the employer of the office worker.

① On November 29, 1967, at least after the Seoul Central District Court Regulations (hereinafter referred to as the "Rules of 1967") was enacted, all branches of the Joint Office were forced to become a member of the Joint Office, and the Joint Office has continued as a non-corporate body performing socially independent functions, such as the organization and administrative division, and the distribution of profits;

(2) In a joint office, the joint office shall accept the affairs related to execution in a lump sum, distribute the affairs to the members' collection and have them perform the affairs as prescribed by the rules, and distribute the profits accruing therefrom equally, and

(3) The office clerks shall order them to work at the principal office or a supporting office after they are actually employed in the name of a joint office;

4. The remuneration and retirement allowances prescribed by the joint office set forth in the remuneration regulations for clerical staff and the benefits determined by the joint office in accordance with the career and salary class have been paid as wages for clerical staff, and

⑤ In addition, the head of the joint office has the right to take disciplinary action against the office clerical staff, and the office clerical staff have received education from the joint office, while the office clerical staff have received education from the joint office.

(6) When a recipient of the office retires, he/she shall take a form of dismissal when he/she retires, but actually changes his/her position to a new recipient of the office and continue to work.

In full view of these circumstances, even though the office employees including the plaintiffs were formally working as individual office employees of the office employees, they recognized that they continued to provide labor in subordinate relationship for the purpose of wages in the defendant office.

Examining the relevant evidence compared with the records, the court below's above fact-finding cannot be deemed as an unlawful act of misunderstanding facts against the rules of evidence. If it is based on such factual basis, it shall be interpreted as an independent judicial institution under the interpretation of Article 55 (2) of the Court Organization Act and Article 2 of the former Inheritance and Gift Act (amended by Act No. 5002 of Dec. 6, 1995), and Article 17 (1) and (4) of the Rules (amended by Act No. 1402 of Dec. 26, 1995), Article 17 (1) and (4) of the Labor Standards Act (amended by the Supreme Court Rules No. 1402 of Dec. 26, 1995), even if the office of the defendant's office appears to be dismissed from office under its own responsibility, it shall not be deemed as an unlawful act of misunderstanding the legal principles as to the employer's retirement allowance payment obligation against the plaintiffs under Articles 28 (1) and 30 of the Labor Standards Act.

3. As to the time when the labor relations between the plaintiffs and the defendant's office were established (the grounds of appeal Nos. 1 and 1, 2, and 3 of the plaintiff 2)

According to the reasoning of the judgment of the court below, at least 1967 joint offices were established as non-corporate associations with a separate office for 197 years, and there was no error in the law of 197 as to the establishment of the defendant's 1's office and 1973 rules, and the defendant's 1's office's 7th office's 7th office's 9th office's 197th office's 197 office's 9th office's 7th office's 197 office's 9th office's 197 office's 9th office's 197 office's 197 office's 9th office's 197 office's 9th office's 197 office's 196th office's 197 office's 197 office's 197 office's 19th office's 197 office's 3th office's 19th office's 3th office's office's office's 17th office's office'

4. As to whether the employment relationship of the plaintiffs was terminated as of December 31, 1983 (the ground of appeal No. 2 by the defendant office)

If a worker retires as a person according to free choice in the same business and works again on the following day, his/her employment relationship shall be terminated. However, if the worker has not retired voluntarily according to free choice, and if he/she has taken the form of payment of retirement allowances until it according to the unilateral decision in accordance with the management policy of the employer, the employment relationship cannot be said to have been severed.

According to the reasoning of the judgment below, the court below decided that the defendant's office shall revise the salary regulations at the ordinary meeting of October 20, 1983 and newly establish a retirement allowance provision from January 1, 1984 to pay the retirement allowance only for the continuous service period after that day, and accordingly, paid to the plaintiffs on December 19, 1983 as retirement allowance as of March 1, 1980 to October 31, 1983. However, the court below did not admit that the plaintiffs had received the retirement allowance every time since they retired from office as a member of the new office due to their retirement, and there was no evidence to acknowledge that the plaintiffs retired from office at the ordinary meeting of December 19, 1983 or that the plaintiffs voluntarily settled the retirement allowance before and after that day. Thus, the court below did not err in the misapprehension of the legal principles as to the above interim retirement allowance payment due to the violation of the rules of evidence, since there was no evidence to find that the above plaintiffs continued to pay the retirement allowance by the defendant's office.

5. As to the scope of wages to be included in the calculation of average wages of the plaintiffs

(a) Scope of wages to be included in the calculation of average wages;

The total amount of wages, which is the basis for the calculation of average wages, are money and valuables paid by an employer to an employee as workers eligible for labor, which are paid continuously and regularly to an employee and whose obligation to pay is deleted by collective agreements, rules of employment, salary regulations, employment contracts, labor contracts, labor practices, etc., regardless of their titles (see, e.g., Supreme Court Decisions 96Nu15084, May 28, 1997; 95Nu19256, May 14, 1996; 94Da5934, May 12, 195; 91Da5587, Apr. 14, 1992). On the other hand, the amount of money and valuables paid by an employee other than the employer as workers, or the amount of additional expenses paid by the employer to reimburse without the obligation to pay the average wages, shall not be included in the total amount of wages which are the basis for the calculation of the average wages.

B. As to Plaintiff 1’s labor allowance (Plaintiff 1’s ground of appeal No. 2)

According to the reasoning of the judgment below, the court below found the plaintiff 1's assertion on the labor allowances, after considering the evidence as to the plaintiff 1's argument, it is hard to see that the office's payment of 9,500 won per month of the above expenses should be made to the plaintiff 1's executive officer for the seizure of corporeal movables, real estate order, removal of real estate, and 9,500 won as labor allowances, and if it is necessary to use the technician or worker as the executive assistant, 70,000 won per person's labor expenses per month pursuant to subparagraph 5 of Article 20 and Article 25 of the Rules on House Service Fees, and if the office's payment of the above fees was made to the plaintiff 1's office together with the records and records, it is hard to see that the office's payment of 9,500 won per month of the above expenses should be made to the plaintiff 1's executive officer's average wages and half of the above expenses, and there is no error in the misapprehension of legal principles as well as to be paid to the plaintiff 1's executive officer's.

C. As to the Plaintiff 2’s investigation into the current status of real estate (Plaintiff 2’s ground of appeal No. 4)

According to the reasoning of the judgment of the court below, the court below acknowledged the fact that, in the event that the owner of the work conducts an investigation after receiving an order from the auction court to conduct an investigation on the status of real estate from the auction court on the assertion of the plaintiff 2's allowance for the investigation of the status of the real estate, the auction court received fees, travel expenses for the collection of the office, photographing expenses, and expenses for issuance of resident registration from the applicant for the auction under Article 20 of the Enforcement Fee Rules, and paid them to the owner of the work, and in accordance with the owner of the work, the office clerk assist the above investigation on the status of the above status, travel expenses for 10,000 won per business trip and travel expenses for 2,260 won per business trip and the expenses for issuance of resident registration, are being paid to the owner of the work on the basis of the evidence investigation of the plaintiff 2's average wage, and there is no error in the misapprehension of legal principles as to the fact-finding or the calculation of the status of the executive officer's average wage.

D. As to Plaintiff 2’s outer travel expenses (Defendant’s office’s ground of appeal No. 3)

According to the reasoning of the judgment below, the court below determined that Plaintiff 2’s external travel expenses shall be included in the basic wages for calculating average wages, regardless of the number of cases handled each month by the Defendant office to the office employees who assist the investigation into the current status, and that the office of the Defendant would be uniformly paid KRW 150,000 per month to all office employees who assist the investigation into the current status since 1979, because the office of the office of the Defendant tend to evade the investigation into the status of the real estate by taking into account the evidence as stated in the judgment regarding Plaintiff 2’s assertion on the external travel expenses. In light of the records and records, the court below’s fact-finding and judgment are justifiable, and there is no error in the misapprehension of the facts against the rules of evidence as to the scope of basic wages for calculating the average wages as discussed in the grounds for appeal No. 3. The ground for appeal by the Defendant office is without merit.

6. Therefore, the appeal by the plaintiffs and the defendant office is without merit, and all of these appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)