The defendant's appeal is dismissed.

1. The gist of the grounds for appeal is that E is a personal entrepreneur independently engaged in his business while paying income tax, and it is not an employee employed by the Defendant’s D Fishery Research Institute (hereinafter “the instant private teaching institute”).

Nevertheless, the judgment of the court below which found the defendant guilty on the premise that E is a worker is erroneous by mistake.

2. Determination of whether a labor contract constitutes a worker under the Labor Standards Act shall be based on whether the form of a contract is an employment contract or a contract for employment, and in substance, whether an employee provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Determination of whether an employee is subordinate to the above mentioned above ought to be made by comprehensively taking account of the following factors: (a) whether the employer determines the work contents and is subject to the rules of employment or the rules of employment; (b) whether the employer designates work hours and work places; and (c) whether the employer is bound by the employer; (d) whether the employer is capable of operating his/her business on his/her own account; (e) whether the employer has knowledge of risks, such as the creation of profits and losses from the provision of labor; and (e) whether the nature of remuneration was determined by the basic or fixed wage; and (e) whether the employer has continued to provide labor relations; and (e) whether the employer has exclusive responsibility to the employer; and (e) whether the social security system recognized as an employee.

However, the circumstances such as whether the basic or fixed pay was determined, whether the labor income tax was collected at source, and whether the social security system was recognized as an employee, etc. shall be the employer.