(영문) 서울중앙지방법원 2015.5.22.선고 2015노355 판결

A. H and J did not direct and supervise the contents of work, such as (i) the Defendant’s own selection of teaching materials, and (ii) the Defendant stayed in a private teaching institute without setting the time to commute to and from work, (iii) the Defendant was not in charge of any other incidental work such as counseling for entering school in addition to the lecture in question, (iv) the Defendant was freely demoted in other private teaching institutes during the period of demotion, and (v) the Defendant was not subject to the rules of employment, and was paid a lecture fee for a lecture time without setting the basic salary or fixed wage, and was paid business income tax, and thus, it is not a worker who provided labor in a subordinate relationship to the use for the purpose of wage.

B. Even if H and J constituted a worker, there was authoritative interpretation of the Ministry of Labor that the instructors of the inquiry subject, such as H and J, do not constitute a worker, and the case was closed on the ground that the instructors of the inquiry subject, such as H and J, filed a petition with the competent Labor Office on the ground that they were not workers but were not workers, and thus, the Defendant constitutes a case where there was no intention or a legitimate ground for mistake in law.

2. Determination

A. Whether H and J are workers

The determination of whether a worker is a worker under the Labor Standards Act ought to be 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 at a business or workplace. Whether the above subordinate relationship is determined by the employer, and whether the employer has considerable command and supervision in the course of performing work, whether the employer is subject to the employment rules or service regulations, whether the employer is allowed to operate his/her business on his/her own account, such as the designation of working hours and working place, whether the employer is bound by the employer, whether the employer is able to own equipment, raw materials, work tools, etc., or have a third party employ and act on behalf of the employer, and whether the risks, such as the creation of profits and losses through the provision of labor, are the nature of the work itself, whether the basic salary or fixed wage was determined, and whether the wage tax was withheld at source, and whether the employer has an exclusive affiliation with the employer, and whether the social security system was recognized as an employee, etc. (see, e.g., Supreme Court Decision 20000Da264.).

The following facts can be acknowledged according to the evidence duly adopted and investigated by the court below, which was returned to the instant case:

(1) As the representative director of the FF Co., Ltd. (hereinafter referred to as the “private teaching institute of this case”), the Defendant is an employer who provides educational services at nine points located in the Seoul metropolitan area, such as G branch (hereinafter referred to as the “branch of this case”), I PH (hereinafter referred to as the “private teaching institute of this case”), this branch (hereinafter referred to as the “branch of this case”), W branch (hereinafter referred to as the “W branch of this case”), and N branch (hereinafter referred to as the “N branch of this case”).

(2) The instant private teaching institute has recruited students, such as re-students, who want to apply for the College Ability Test as a university entrance training institute, and organized a group of re-personnels composed of a certain number of students, and has been operated in the form of providing students with lectures for various subjects given in accordance with the class hours table between November and February each year during which the College Ability Test was implemented, and providing students with academic counseling, mother examinations, self-practice supervision, etc.

(3) From December 26, 2006 to November 6, 2012, H urged the subjects of the instant G, N, and 0 points to the nearest Ambassador, State affairs, and world history. J demotedd the instant chemical subjects from December 28, 2009 to November 22, 2012 at the G, N, and 0 points. The instant private teaching institute did not prepare a written contract with instructors as to lecture hours, tuition fees, etc. by 2014.

(4) From December 26, 2006 to November 6, 2012, H took 12 hours per week from the instant G branch, 4 hours per week from February 3, 2012 to November 1, 2012, and 4 hours per week from the instant branch, from February 23, 2012 to November 1, 2012, H taken four hours per week from the instant N branch to the neighboring Ambassador and the global subject at the instant N branch, and J taken four hours per week from January 23, 2012 to November 1, 2012. The period from January 201, 201 to November 1, 2010 to the instant G branch, 12 hours per week from the instant W branch to November 6, 2010 to the instant private teaching institute, and the period from January 1, 201 to December 16 to 16, 2010.

(5) The number of lecture hours per week and H and J determined by the instant private teaching institute. H and J received tuition fees per hour uniformly determined by the instant private teaching institute, multiplied by the monthly lecture hours. However, in setting the lecture time table, H and J consulted in advance by taking into account the circumstances such as H and J’s other private teaching institute lecture hours.

(6) Unlike the Korean language, English, and academic subjects (hereinafter referred to as “non-permanent instructors”), the instructors of the research subjects such as H and J (hereinafter referred to as “non-permanent instructors”) did not leave the class room, but completed the lecture with the driving school by no later than the time of the lecture he/she takes charge of, and retired from the school. If the mother’s examination is conducted on the date of the lecture, he/she has the time to respond to the question at night as necessary or supervised the mother’s death.

(7) Non-permanent instructors selected their teaching materials, received 60% of their sales revenue from teaching materials from a private teaching institute, and did not place a book designated in the school room. However, the employees of the private teaching institute of this case managed the attendance and lecture of non-permanent instructors at the regular time. The private teaching institute of this case decided to re-contract with instructors at November each year by conducting three times the lecture evaluation and the president evaluation.

In light of the above facts and records, ① each subject entrusted by H.J is an essential and indivisible part of the operation of the instant teaching institute in light of the purpose and operation form of the instant educational institute. As such, the instant educational institute has a large incentive to freely direct and supervise as to the implementation of the H.J’s lectures in order to ensure the proper performance of its duties, and ② it is difficult to view the Defendant’s employer as the result of not subject to specific and individual direction and supervision on the content and method of his lectures to freely collect wages from the professional and discretionary mental characteristics of the instant educational institute, ③ it is difficult for H.J to freely determine the number of hours per week and the number of hours per week, ③ it is difficult to freely collect wages from the Plaintiff’s school due to the fact that the Plaintiff provided his/her own labor during the instant period of time, and ④ it is difficult to freely determine the number of hours per se and hours per week, and ④ it is difficult to freely determine the number of hours per se by means of the instruction or performance of his/her duties, barring any inevitable circumstances.

B. We examine whether the Defendant had no intention or a legitimate ground for legal mistake, and the interpretation of the Ministry of Labor’s assertion by the Defendant does not change from this case and its content, and even if the case raised by the non-permanent instructors, such as H.J, such as the Defendant’s assertion, was closed at an investigative agency, it cannot be deemed that there is a justifiable ground to believe that the instant act does not constitute a crime. This part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.