2013 Gohap30160 Retirement Pay, etc.

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

14.N

15.O

16. P;

Q. Q.

Bosene Co., Ltd.

June 26, 2014

September 18, 2014

1. The defendant shall pay to the plaintiffs 20% interest per annum of 20% interest per annum from the corresponding date to the day of full payment as stated in the "amount of retirement allowance" column of attached Table and each of them.

2. Each of the plaintiffs' remaining claims is dismissed.

3. 3/5 of the costs of lawsuit are assessed against the plaintiffs, and the remainder is assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 20% interest per annum from the corresponding date to the day of full payment as stated in the "total amount of claims" column of attached Table and each of them.

1. Basic facts

A. The Defendant Company, engaged in import and sales business, such as KON, Scarf, and bags, entered into a purchase transaction agreement with the Defendant Company to purchase goods imported by the Defendant Company on credit and sell them from the department stores operated by the Defendant Company, and pay the remainder after deducting the commission from the sales revenue, and agreed to dispatch the manpower to the Defendant Company to the sales business within each department store.

C. The Plaintiffs prepared a “statement of sales services contract with the Defendant Company” around the corresponding day set out in the attached Table’s business commencement date, and, from each of the above corresponding days, the Plaintiffs performed their duties as a sales salesperson who sells goods imported by the Defendant Company within each of the above department stores, and terminated the sales business on each of the corresponding days set forth in the attached Table’s “ended

【Ground of recognition】 The fact that there has been no dispute, Gap No. 27 evidence, Eul No. 4 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

The Plaintiffs were workers who provided labor under the direction and supervision of the Defendant Company, and did not receive each retirement allowance as stated in the column of “amount of claim for retirement allowance” as stated in the attached Table, even though they retired from the Defendant Company. In addition, the Plaintiffs were obligated to pay the Plaintiffs each amount of money as stated in the column of “total amount of claim for retirement allowance and each extension, holiday, and annual leave allowance” and “amount of claim for overtime, holiday, and annual leave allowance” as stated in the attached Table, even though they were unable to use the annual leave for 35.1 hours each month at the time of Defendant Company’s employment (i.e., overtime, 32.5 hours each day and 2.6 hours each month, and 23.4 hours each month.

B. Since the Plaintiffs entered into a sales service agreement with the Defendant Company and provided services accordingly, they are only paid fees, they cannot be deemed as employees of the Defendant Company.

Even if the plaintiffs are employees of the defendant company, since the defendant company calculated 8.33% of the fees to be paid each month to the plaintiffs as retirement allowances and paid fees including them, all of the plaintiffs' retirement allowances were paid. If the defendant company's payment of retirement allowances is not recognized despite the above-mentioned retirement allowances are included in the fees to the plaintiffs, the plaintiffs should return the money they received as retirement allowances to the defendant company as unjust enrichment, so the above unjust enrichment return claims of the defendant company and the plaintiffs' retirement allowances to the extent equal.

In addition, the defendant company will be in a serious business crisis if the defendant company will pay additional retirement benefits to the plaintiffs, and it is not permissible to receive them with the knowledge of the fact that the plaintiffs' retirement benefits are included in the fees and seek additional retirement benefits to the defendant company against the principle of trust protection.

3. Determination

A. Whether the plaintiffs are employees of the defendant company

1) Legal principles

Determination of whether an employee constitutes a worker under the Labor Standards Act ought to be based on whether an employee provided labor in a subordinate relationship with an employer for the purpose of wages in substance, rather than in a contract form. Determination of whether an employee is subordinate relationship ought to be made by comprehensively taking account of the economic and social conditions, such as the employer’s provision of labor, continuity of the provision of labor relationship and the degree thereof, whether the employer is subject to considerable direction and supervision during the performance of duties, whether the employer designates working hours and working places, and whether the employee is bound by the employer, whether the employer is able to operate his/her business on his/her own account, whether the employer is able to own equipment, raw materials, work tools, etc., to create profits and losses through the provision of labor, whether the nature of remuneration is determined, whether the nature of remuneration is the object of labor, whether the basic wage or fixed wage has been determined, whether the employee is exclusive to the employer, and whether the employee status is recognized as an employee under the Act on Social Security System.

2) Determination

In light of the following circumstances, it is reasonable to view that the Plaintiffs constitute a worker who provided labor to the Defendant company in a subordinate relationship with the purpose of wages, in light of the following circumstances, which can be acknowledged by comprehensively taking into account the descriptions of Gap evidence Nos. 2 through 28, 30, 32, 33, 35, 37, 39, 39, 40, Eul evidence Nos. 1 through 4, Eul evidence Nos. 7-1, 11 through 14, and 16.

A) Around October 31, 2005, the Defendant Company initially employed the sales clerks as full-time employees belonging to the business department, and submitted written resignations in lump sum from the above sales clerks, and paid retirement allowances around the end of 2005, and entered into sales services contracts with the above sales clerks, and thereafter, filled the sales clerks in the manner of concluding sales services contracts, not employment contracts, and there was no change in the content of the sales clerks’ duties, the method of performing their duties, and the method or degree of performing their duties.

B) Under the sales services contract, the Defendant Company provided that the sales revenue in charge of the department store shall be paid a fee calculated by multiplying the sales revenue in charge by a certain fee rate. However, even if the sales revenue is below a certain amount, the Defendant Company guaranteed that the sales revenue was paid at least a certain amount per month, regardless of the sales revenue. As such, there were many cases where the amount calculated according to the calculation method set in the sales services contract and the fees were paid in addition to a certain amount. Moreover, the sales services contract concluded between certain Plaintiffs and some other Plaintiffs did not state the fee rate. Furthermore, the Defendant Company sold only the goods imported by the Defendant Company within the department store set forth in the sales services contract and did not sell the goods of other trademarks that are not imported by the Defendant Company. Moreover, the Plaintiffs were determined in accordance with the special contract on sales between the Defendant Company and the department store operator, and the profits and losses incurred to the sales department operator and the sales department operator were not generated by the sales department.

D) In the event that a special sales event, etc. requires additional human resources in the store, the short-term sales salesperson is recruited on the recommendation of the existing sales salesperson, and the Plaintiffs’ payment details are taking the form of paying allowances to be paid to the short-term sales salesperson. However, such events, etc. are conducted in accordance with the business policies of the Defendant Company or department store, and the Defendant Company is the Defendant Company.

E) Although the Defendant Company did not regularly manage the situation of the salesperson’s departure or retirement at all times, the Defendant Company was equipped with an electronic computer system capable of managing the said system and, if necessary, demanded the sales clerks to report the situation of departure, retirement, and holiday use, and the Plaintiffs voluntarily prepared the materials on the working conditions and submitted them to the Defendant Company.

F) As the key part of the Defendant Company’s business, the sales of department stores are 10 or more employees who entered into an employment contract with the Defendant Company, compared to the number of employees who entered into an employment contract with the Defendant Company, the number of sales clerks exceeds 400.

On the other hand, according to the overall purport of evidence Nos. 5, 6, and 7-2, 3, 8, 9, 21, and 23 of the evidence Nos. 5, 7-2, 7-2, 8, 7-2, and 8, 9, 21, and 23, the plaintiffs are not subject to the rules of employment, etc. applicable to other general employees, and they paid business income tax other than the earned income tax by business registration under the Value-Added Tax Act, and they are not covered by so-called four-called industrial accident compensation insurance, employment insurance, etc., but it is difficult to see that the

B. Determination as to a retirement allowance claim

1) As seen earlier, the Plaintiffs were employed as the employees of the Defendant Company and retired after the termination of sales business on each of the pertinent days as stated in the “Date of the termination of the business” column, and the Defendant Company is obligated to pay retirement allowances to the Plaintiffs, barring any special circumstances.

2) It is insufficient to recognize that the determination of the Defendant Company’s assertion contains a monetary amount equivalent to 8.33% of the commission paid by the Defendant Company to the Plaintiffs solely on the basis of the written evidence evidence Nos. 10 through 15, 22, and 23, and there is no other evidence to acknowledge it. Thus, the Defendant Company’s assertion on a different premise is without merit without further review.

(iii)the calculation of retirement allowances;

The fact that the plaintiffs worked for the defendant company for the period of service from the corresponding date to the corresponding date in the "date of completion of business" as stated in the "date of service" column of the attached Table shall be as mentioned above, and the fact that the plaintiffs received the fees as stated in the "final three-month salary" column of the attached Table for the three-month period before their retirement as wages does not conflict between the parties, or it may be recognized by the statement in the attached Table B No. 16-1 to 15. Thus, the average daily wages of the plaintiffs calculated accordingly are as stated in the "average wages of the attached Table 1" column, and the retirement allowances of the plaintiffs are as stated in the "amount of retirement allowances" column of the "amount of retirement allowances" column of the attached Table.

4) Sub-committee

Therefore, the defendant company is obligated to pay each of the following amounts as stated in the "amount of retirement allowances" column to the plaintiffs, and the delay damages calculated at the rate of 20% per annum as stipulated in the Labor Standards Act from the corresponding date to the date of full payment of the damages for delay, which is the following day after 14 days from the date the plaintiffs retired.

C. Determination on the claim for overtime, holiday, and annual leave allowances

According to the evidence Nos. 28-1 and 28-2, the fact that the general business hours of the department store are from 10:30 to 20:00 may be recognized. However, each of the above facts of recognition and the evidence Nos. 21 and 37 is insufficient to recognize that the Plaintiffs engaged in overtime work for 35.1 hours each month while they serve as sales clerks in the defendant company, and there is no other evidence to recognize it. Furthermore, there is no evidence to acknowledge that the Plaintiffs engaged in the work for 23.4 hours each month or used only the annual leave for 5 days each year. Accordingly, this part of the Plaintiffs’ assertion is without merit.

4. Conclusion

The plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are groundless.

The presiding judge, judges and assistant judges;

Judges' Senior Completion

Judges Gangseo-Ilia

A person shall be appointed.