Article 10 of the Labor Standards Act and the meaning of "business or workplace which ordinarily employs not less than five workers" under the proviso of Article 1 of the Enforcement Decree of the Labor Standards Act and its criteria.

Article 10 of the Labor Standards Act and the proviso of Article 1 of the Enforcement Decree of the same Act, the term “business or workplace which ordinarily employs not less than five workers” shall not refer to the business or workplace with not less than five workers who work in the workplace at that time, but shall refer to the business or workplace with not less than five workers who work in the workplace at that time, which means the business or workplace with not less than five workers who work in the workplace at that time, and in that case, the term “regularly” shall be interpreted to mean the situation, so it shall be deemed to be the case where not less than five workers are deemed to work in the situation, even if there are cases where the number of workers is less than five workers at that time. In this case, the term “worker” shall include not only the workers who work in the workplace, but also daily workers employed

Articles 10 and 14 of the Labor Standards Act, proviso to Article 1 of the Enforcement Decree of the Labor Standards Act

Supreme Court Decision 87Do153 Decided April 14, 1987

[Judgment of the court below]

Attorney Park Chang-chul, et al., Counsel for the defendant-appellant

Seoul High Court Decision 86Na3805 delivered on March 9, 1987

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, according to Article 2 (2) 4 of the General Terms and Conditions of Automobile Insurance of this case, which the plaintiff joined as the plaintiff by citing the judgment of the court of first instance, where an employee of the insured dies or is injured by a person entitled to accident compensation under the Labor Standards Act, the defendant, the insurer, shall not pay insurance money to the insured. The accident of this case occurred, which is a worker of Youngcheon Sewerage Construction, who ordinarily employs not less than five workers and is operated by the plaintiff, and the non-party 1, who is a worker of Youngcheon Sewerage Construction, who was operated to transport sand necessary for the Hancheon Sewerage Construction, which the plaintiff was constructed under a subcontract, was on board the truck of this case for the operation of the driver bridge and sand drop, and thus, he may receive accident compensation under the Labor Standards Act. Thus, the defendant's attorney's assertion that there was no obligation to pay insurance money. Thus, the defendant's employee at the time of the accident of this case did not have the above six employees including the above non-party 1, but the remaining non-party 2 and the non-party 3.

However, according to the witness non-party 1's testimony cited by the court below, the non-party 2 had worked for the above Young Construction since 2 years prior to the occurrence of the accident in this case. According to the witness non-party 4's testimony cited by the court below, it can be acknowledged that the non-party 2 continued to work for the above Young Construction until after March 31, 1984, and according to the witness non-party 4's testimony and the statement in the evidence No. 2 that the court below rejected the above witness non-party 4's testimony and the court below's non-party 2's statement, the period of the construction work for the Gocheon Sewerage Construction which was executed under a subcontracting contract from August 3, 1983 to November 10 of the same year is clear that the actual completion date is from November 7 of the same year, so the court below's fact-finding that the non-party 2 was merely a temporary employee for the above Hocheon Sewerage Construction Corporation, and it

In addition, even if the court below can be seen to have rejected the testimony of the non-party 1, who is contrary to the facts of recognition by finding facts as above, it shall be interpreted that the term "business or workplace which ordinarily employs five or more workers" under Article 10 of the Labor Standards Act and the proviso of Article 1 of the Enforcement Decree of the same Act does not mean "business or workplace with five or more regular employees", but it means "business or workplace with five or more regular employees", and it shall be interpreted that it is obvious and clear from the text of this Act, and it shall be deemed that there is less than five regular employees, even if there are cases where the number of workers becomes less than five, it shall be deemed that there are more than five employees, and it shall be deemed that the worker is a daily worker as defined in Article 14 of the Labor Standards Act, and that the daily worker is not only a continuous worker in the workplace, but also a daily worker who is employed for the reason that it does not have any influence on the remaining part of the worker's work, including the daily worker's construction work under Article 84 of the Labor Standards Act.

Therefore, the judgment below is reversed, and the case is remanded to the Seoul High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee B-soo (Presiding Justice)