(영문) 서울행정법원 2016.7.21. 선고 2014구합57898 판결

1. The Defendant’s disposition of return of substitute payment and additional collection made on February 6, 2014 by the Plaintiff is revoked. 2. The litigation cost is borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On April 19, 201, the Plaintiff applied for a substitute payment to the Defendant on the ground that he/she worked as an employee of the Plaintiff Company B (hereinafter “B”), but he/she was not paid wages due to the wind bankruptcy of B. On May 19, 201, the Plaintiff received a substitute payment of KRW 7.8 million from the Korea Labor Welfare Corporation (hereinafter “instant substitute payment”).

B. On February 6, 2014, the Defendant issued a substitute payment as if the Plaintiff was an individual constructor, and received the instant substitute payment by unlawful means as if he/she was an employee under B, Article 14 of the former Wage Claim Guarantee Act (amended by Act No. 12528, Mar. 24, 2014); Article 20 of the former Enforcement Decree of the Wage Claim Guarantee Act (amended by Presidential Decree No. 25630, Sept. 24, 2014); Article 11 of the former Enforcement Rule of the Wage Claim Guarantee Act (amended by Ordinance of the Ministry of Employment and Labor No. 108, Sept. 25, 2014).

[Ground of recognition] A without dispute, entry of Gap evidence 2, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is a worker who worked with several workers under the command and supervision from B for the purpose of wages in the position of the head of the Working Group or the head of the team. Therefore, the instant disposition based on the premise that the Plaintiff is an individual business operator who is not the employee belonging to B is unlawful and should

B. Determination

1) Determination as to whether a worker is a worker under the Labor Standards Act shall be made based on whether the form of a contract is an employment contract or a contract for work, and whether a worker has a subordinate relationship with an employer for the purpose of wages in the business or workplace. Determination of whether a dependent relationship exists shall be made by determining the content of work, and shall be subject to the rules of employment or employment regulations, and shall be subject to considerable direction and supervision by the employer in the course of performing work, whether the employer is bound by the employer, whether the employer is capable of operating his/her business on his/her own account, such as possessing equipment, raw materials, working tools, etc. or having a third party employ by himself/herself, whether the employer has a risk, such as the creation of profit and loss through the provision of labor, whether the nature of remuneration is the object of work, whether the basic salary or fixed wage has been determined, whether the wage is withheld from the wage income tax, and whether the continuousness and degree of employment relationship to the employer, and whether the status of an employee is recognized as an employee under the social security system, shall be determined voluntarily by taking into account various economic and social circumstances.

An appeal seeking the revocation of an administrative disposition has the burden of proving the legitimacy of the pertinent disposition against the Defendant, who is the disposition agency claiming the lawfulness of the pertinent disposition (see Supreme Court Decision 2006Du12937, Jan. 12, 2007).

2) According to the witness C’s statements in this Court, the fact that the Plaintiff works as the head of the Working Group at the construction site subcontracted by the daily workers who are their team members and B.

However, the following circumstances are acknowledged by Gap evidence Nos. 5 and 6; Eul witness Eul’s statement in this Court; i.e., ① where Eul orders a large construction company to work for interior works, and where Eul employs a subcontracting company, it is divided into whether a tax invoice is issued; ② where it is necessary to improve the quality of Eul’s subcontract, if it is difficult to maintain the subcontract relationship with the subcontractor, it is necessary to reduce the construction period or replace the subcontractor, and the remaining construction work is not conducted by the subcontractor, and the plaintiff is not found to have been conducted to have been conducted directly for the same purpose as the subcontractor’s employees, in light of the following circumstances: (i) where Eul orders to work for interior works from the ordering person, such as a large construction company; and (ii) where the subcontractor’s employees are found to have not been found to have been found to have been found to have not been able to receive wages from the subcontractor’s employees; (iii) the Plaintiff’s demand for the construction and substitute payment for the construction work is not the one for which the subcontractor was directly supplied to the subcontractor’s and its employees.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.