Plaintiff 1 and seven others (Attorneys Jeon Young-young et al., Counsel for the plaintiff-appellant)

Korea hydroelectric Power Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Lee Jong-soo et al., Counsel for the defendant-appellant)

November 30, 2012

Seoul Central District Court Decision 2010Kahap13596 Decided November 29, 2011

1. The defendant's appeal and the plaintiffs' incidental appeal are all dismissed.

2. The appeal costs and incidental appeal costs shall be borne respectively by each person;

1. Purport of claim

A. The plaintiffs' primary purport of the plaintiffs' primary claim is as follows: from January 17, 1997; from February 8, 1999; from September 1, 2002; from November 19, 2002; from November 4, 2002; from November 19, 2002; from November 5, 2002; from September 18, 2002; from November 25, 2005; from October 4, 2004; from May 20, 2002; from May 20, 2002, the plaintiffs 7; from May 20, 8; from May 20, 2002 to December 4, 201, the defendant paid to the plaintiffs the amount of 12,000,000 won; from December 4, 2000 to 20,000 per annum of the plaintiff's annual restitution; and

B. The plaintiff 1, 2, 3, 4, 5, 7, and 8 (hereinafter "the plaintiff 1 et al.")'s preliminary claim and the preliminary claim of the plaintiff 6: from July 1, 2000; from February 28, 2001; from February 19, 2004; from February 19, 2004; from November 19, 2004; from November 5, 2004; from September 25, 2004; from October 25, 2007; from October 4, 2006; from May 20, 2004; from May 20, 2004; from May 20, the defendant confirmed that the plaintiff 1 et al. were to receive the plaintiff 1's complaint from the date following the date of complete payment; from October 25, 2007; from October 20, 2006; from May 20, 20101.

C. Plaintiff 6’s claim 2: The Defendant expressed his intention to employ Plaintiff 6. The Defendant shall pay to Plaintiff 6 5% per annum from December 4, 2010 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment. The Defendant shall pay to Plaintiff 6 2,00,000 won per annum from December 4, 2010 to the day of complete payment, and shall pay the amount at the rate of 2,00,000 won per month from December 4, 2010 to the day of full payment.

2. Purport of appeal

The part of the first instance judgment against the defendant shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

3. Purport of incidental appeal;

The main part of the judgment of the court of first instance concerning a claim shall be revoked.

From January 17, 1997, Plaintiffs 1 and 2, from February 8, 1999, Plaintiffs 3 and 4 from November 19, 2002, Plaintiffs 5 and 6 from November 25, 2005, from November 25, 2005, Plaintiffs 7 and 8 from May 20, 2002 to May 20, 2002, respectively, are the workers status of each Defendant. The Defendant shall pay to the Plaintiffs 12,00,000,000 won, and from December 4, 2010 to November 19, 2002, the amount from the next day to October 21, 200, respectively, to 200,000 won, respectively, from October 4, 2010 to the day of the delivery of a copy of the complaint of this case, and 20% of the amount from the redemption to the day of full payment.

4. Scope of the judgment of this court.

In the first instance court, the plaintiffs primarily claimed confirmation of the status of workers and wage on the premise of the establishment of an implied employment contract relationship. The plaintiff 1 et al. claimed the plaintiff 6 directly on the premise of the establishment of the employment dispatch relationship with the worker. The plaintiff 6 provided the plaintiff 2 preliminary claims for confirmation of the status of workers and the equivalent amount of wages under the direct employment obligation of the defendant on the premise of the establishment of the employment dispatch relationship with the worker. The court of first instance dismissed the plaintiffs' primary claims, the plaintiff 1 et al., the plaintiff 6's preliminary claims, and the second preliminary claims by the plaintiff 6 et al. for the plaintiff 2. Accordingly, the plaintiffs appealed each of the conjunctive claims by the plaintiff 1 et al., the defendant et al., and the second preliminary claims by the plaintiff 6 et al. for the plaintiff 2. Accordingly, the plaintiff's main claims are limited to the plaintiff's main claims, the plaintiff 1 et al., and the conjunctive claims by the plaintiff 6 et al.

1. Basic facts

A. On April 2, 2001, the Defendant, a corporation established by the Korea Electric Power Corporation for the purpose of generating nuclear power, etc. established by the Korea Electric Power Corporation, operates a second power plant under its control (hereinafter “instant power plant”).

B. On January 12, 1994, the Korea Electric Power Corporation established a “plan to minimize human resources in the field of nuclear power,” and decided to entrust the operation of cooling, heating, heat management, and technical assistance to a service company in accordance with the “plan to improve the operation of nuclear power-based business operations” on December 9, 1994. Accordingly, with respect to existing electric power plants, the Korea Electric Power Corporation started to entrust the operation of air cooling, heating, heat management, and technical assistance to the service company with the operation of air cooling, heating, heat management, and technical assistance.

C. The instant power plant is an adequate new power plant after the implementation of the “plan to improve the operation of the nuclear power plant.” The Korea Electric Power Corporation re-entrusted the operation of the instant power plant to the Korea Electric Power Corporation, which was a contractor, with the operation period from January 1, 1997 to December 31, 198 (hereinafter “Korea Electric Power Corporation”) under the Korea Electric Power Corporation (hereinafter “Korea Electric Power Corporation”) with assistance in the maintenance of trial and operation of assist in the development of nuclear power plants and collection of chemical samples. From January 1, 1999 when the instant power plant was operated with the fixed operation of the instant power plant, the Korea Electric Power Corporation succeeded to the status of the trustor of the instant nuclear power plant’s assistance in the development of the nuclear power plant and the collection of chemical samples from April 2, 201, and the Defendant succeeded to the status of the operator of the instant nuclear power plant’s assistance in the collection of chemical samples from the Korea Electric Power Corporation (hereinafter “Korea Electric Power Corporation”).

D. In addition, the following are the Korea Electric Power Corporation and the Defendant (hereinafter “Defendant, etc.”) entrusted the business of assisting the power plant’s development of the instant power plant and the business of collecting chemical samples and the business of assisting the outdoor transformation station in the Korea Electric Power Company through a negotiated contract or limited competitive bidding (hereinafter “Korea Electric Power Corporation”) with the alteration of its trade name in light frequency service around October 28, 2010; hereinafter “Korea Light Power Network service”); and when referring to the whole, hereinafter “service company”).

In the case of the Korea Electric Power Corporation’s contract under the Korea Electric Power Corporation’s name (hereinafter “Korea Electric Power Corporation”) from January 1, 1999 to January 31, 200 to January 31, 200, under the Korea Electric Power Corporation’s Korea Electric Power Corporation’s Korea Electric Power Corporation’s contract on February 1, 2001 to January 31, 2001, to January 31, 2002, the Korea Electric Power Corporation/the Korea Electric Power Corporation’s Korea Electric Power Corporation’s private contract on February 1, 2002 to February 31, 2002 to February 28, 2003, the Korea Electric Power Corporation’s private contract on February 1, 2002 to February 1, 2003 to March 1, 2003 to March 31, 2004 to June 31, 2008 to June 31, 2004.

E. The Plaintiffs continued to engage in the same job except as the changed service company if the Defendant’s service company is changed after the Plaintiff joined the pertinent service company on the first day of entry and started to work in the instant power plant and the outdoor transformation station as follows. The Plaintiffs continued to engage in the same job on June 4, 2010.

(f) is notified of the termination of labor relations upon the expiration of the period.

Plaintiff on January 7, 1997, as at the time of the initial entry date of Plaintiff’s name included in the main text, to be in charge of the name of the service company at the time of the initial entry date, and Plaintiff on February 8, 1999, who was engaged in the business of supporting the power generation support team of Korea Electric Power Generation Technology Assistance Team of February 8, 209, or Plaintiff on September 1, 2002, who was engaged in the business of supporting the power generation support team of Korea Electric Power Generation Technology Assistance Team of September 1, 2002, as well as Plaintiff on November 19, 200, who was engaged in the business of supporting the power generation support team of Korea Electric Power Power Generation Technology Assistance Team of November 19, 202, Plaintiff 5, who was engaged in the business of supporting the power generation support team of the Korea Electric Power Power Power Power Generation, Plaintiff 20, an assistant to the power generation support team of Korea Electric Power Generation Technology Assistance Team of 204.

【Ground of recognition】 The fact that there has been no dispute, entry in Eul-1 through 4, and 81 (if there are virtual numbers, including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

1) The Plaintiffs formally entered into an employment contract with the service company, but the service company is merely a labor agency of the Defendant, etc., which lacks independence as an employer, and the Defendant, etc. actually received labor by directly using and directing the Plaintiffs. Therefore, the employment contract relationship between the Plaintiffs and the Defendant, etc. was established as implied from the first entry date. Therefore, the Defendant, etc. is in the employment status of the Plaintiffs from the first entry date, and the Defendant, etc., after an implied employment contract relationship was established with the Plaintiffs from June 4, 2010 to December 3, 2010, which is part of the wages, from June 4, 2010 to December 3, 2010, each of which is 12,000,000 won and delay damages therefrom, and 2,00,000,000 won each of the wages, from December 4, 2010 to reinstatement.

2) Even if an implied labor contract was not established, even if a work contract was concluded between the defendant, etc. and the service company, and the contract was concluded between the service company and the plaintiffs, its substance constitutes the dispatch of workers. The defendant, etc. continues to use the plaintiffs as temporary agency workers for more than two years. Therefore, in the case of the plaintiff 1, etc. to which the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter the "former Dispatch Act") applies, the defendant, etc. shall be deemed to have a direct employment at the expiration of two years pursuant to the main sentence of Article 6 (3) of the former Dispatch Act, and the defendant, etc. shall be deemed to have a position as to the plaintiff 1, etc. from that time, and the revised Act (amended by Act No. 8076 of Dec. 21, 2006; hereinafter the "former Dispatch Act") shall be 200 weeks after the expiration of 200-day or 26-day.

B. Defendant’s assertion

1) As an independent business entity with the defendant, etc., a service company has employed workers and paid wages directly to them based on their independent management rights, and exercised their rights and duties as an employer throughout labor relations, such as exercising personnel rights and disciplinary rights. Therefore, the plaintiffs are only workers of the service company, and they cannot be deemed to have established an implied labor contract relationship between the plaintiffs and the defendant, etc.

2) The Plaintiffs merely worked as the employees of the service company under the direction and supervision of the service company, and the Defendants, etc. do not establish a worker dispatch relationship between the Plaintiffs and the Defendant, in addition to the direction of the service company as a contractor for the service company, since they did not command and order as an employer, which is an element for the dispatch relationship with the service company. Even if a worker dispatch relationship is established, insofar as the period of service of the Plaintiffs based on the final service contract between the Defendant and the final temporary work agency exceeds two years, so long as the period of service of the Plaintiffs based on the final service contract between the Defendant and the final temporary work agency does not exceed two years, the requirements under the main sentence of Article 6(3)

3. Facts of recognition;

A. Current status of service enterprises, conclusion of labor contracts with the plaintiffs, etc.

1) The KPS is established in the 1970s and has been engaged in various electric power facilities businesses, such as nuclear energy and hydroelectric power, and has been in full charge of the maintenance and repair of electric power facilities and equipment for the previous nuclear power plant since the completion of the 1978 Gori-ri 1. Korea Electric PowerS has established a separate office in the instant electric power plant, and has established and implemented rules of employment that stipulate working conditions and service regulations with the Defendant.

2) Korea Light Lighting was established on June 25, 199 and has approximately 120 regular workers engaged in electricity-related engineering and service business, etc., and is ordered by many enterprises, such as Korea Electric Power Technology, Spanco construction, treatment construction, and two industries, other than the Defendant. Korea Light Lighting is established and implemented on its own rules of employment that stipulate working conditions, service regulations, etc.

3) The Korea TPS and Korea TPS independently settled accounts, prepare financial statements, and paid corporate tax or value-added tax. Employees, including the Plaintiffs, purchased four social insurance, including employment insurance, industrial accident compensation insurance, national health insurance, national pension, etc., and conducted withholding of wage and salary income tax and year-end tax settlement.

4) The Plaintiffs concluded a labor contract again with the changed service company in the event that the Defendant’s service company is changed after the initial entry. On June 2008, Korea Light frequency was selected as the Defendant’s service company through a limited competitive bidding, and then intended to enter into a labor contract with the Plaintiffs by setting the wages of about KRW 1.5 million per month between the Plaintiffs, but the Plaintiffs were required to pay wages and refused to conclude a labor contract, thereby raising the wages of KRW 2 million per month. The Plaintiffs received monthly wages from the service company.

(b) Conclusion of a service contract between the defendant and the service company;

1) From January 1, 1999 to February 28, 2003, the Defendant, etc. entered into a service contract in the form of a negotiated contract with the Korea Electric Power Complex KS, in which technology was accumulated due to the experience in the maintenance, repair, and maintenance of the facilities for trial operation and electric power generation from January 1, 199 to February 28, 2003. However, the Defendant, from March 1, 2003 to June 3, 2010, established the service capacity of 70 points and the criteria for the qualification examination of the bid price of 30 points (the second point in the case of a person who was subject to the illegal re-disposition for the last two years) and accordingly, selected the service company through limited competitive bidding.

2) According to the relevant provisions of the Act on Contracts to Which the State is a Party, the service cost was determined by aggregating the items of labor cost, expenses, general management cost, profits, and value added tax, and the amount calculated by multiplying the amount of labor cost by the type of work required for the service by the unit price.

C. Plaintiffs’ performance of duties

1) On May 2008, the service performance specifications delivered by the Defendant to Korea Light Lighting Co., Ltd. are indicated as follows with respect to the entrusted duties:

(a)development technology support personnel;

- The operation of assistive devices by TO3 drivers

- Incidental steam production and maintenance and management of boiler facilities

- Operation and maintenance of gas equipment

- Assistance in the operation of field equipment at the time of power plant operation, stop;

- Monitoring and operating of external equipment and water intake facilities of power plants;

-operation of power generation teams and assistance in regular inspection operations;

B. Chemical samples:

- Collection of samples of liquid and liquid gases in the first and second system;

- each system injection of medicines;

- Collection of samples of various radioactive wastes

- Gathering of samples for pure production and multiple salting facilities;

- Assistance in chemical assessment of salt emitting facilities for seawater;

- Assistance in chemical cleaning of dysplorate equipment;

- Assistance in the recycling of multiple salting facilities

- Collection of samples for the measurement of residual salt in the sea water system;

C) A motion picture assistant operator of a substation;

- Monitoring of operation and abnormal conditions of substationss

- Operation of equipment, such as a breaker or short circuit, etc.

- Operation and maintenance of power source facilities for substationss

- Access management of substationss

2) Plaintiffs 1, 2, 3, and 5 were in charge of power generation technology assistance work. The power generation assistance work was divided into power generation assistance work and power generation operation assistant work. The power generation assistant in charge of power generation assistance work mainly carried out the power generation assistance work as well as the operation of gas facilities, etc. The power generation assistance work refers to the work of collecting documents, delivering mail, and filling consumed materials while staying in the “operation assistant”. Plaintiff 1 and Plaintiff 2 carried out power generation assistance work as well as the development assistance work from March 24, 2009, in which the power generation assistant work was carried out, one time a day after which the power generation assistant work was carried out, and one time a day after which the power generation assistant work was carried out as an employee of the Defendant’s office. The power generation assistant, in the case of the power generation assistant’s check of the auxiliary boiler and auxiliary equipment’s external condition within approximately 700 meters away from the Defendant’s office, and, in the case of the case of the Defendant’s gas assistant’s normal operation assistant work, the Defendant’s main equipment after checking work.

3) As of June 8, 2009, Plaintiff 4, Plaintiff 6, and Plaintiff 7, as the cause of subsidization of a substation, performed auxiliary work, such as drawing adjustment, transfer, etc., or self-development or self-development of duties performed by the Defendant’s employees’ electrical team office, by patroling inside the outdoor substation at approximately 1.5 km away from the Defendant’s employees’ office, and checking whether the equipment was abnormal or not, and recording the variables and verifying whether the variables are operating normally. In the case of a worker in daily work, which took effect on June 8, 2009, the Defendant’s employees’ electrical team office, performed auxiliary work, such as checking drawings, transfer, etc., conducted by the Defendant’s reorganization staff at the Defendant’s employees’ electrical team office.

4) Plaintiff 8, a cause of taking chemical samples, is a part-time worker who works for five days (8 hours a day) per week, and mainly works for the removal of foreign substances generated from culpines used in producing salt at the “pulpine facilities” located within approximately 700 meters away from the Defendant’s employees’ office, which are about four times per week, and about four hours per week, when performing one-time work.

5) The Plaintiffs specifically performed the following duties in relation to the duties under the service specifications.

A) Plaintiffs 1, 2, 3, and 5 in charge of the development technology support work performed rework and management of procedural books, drawings, etc., document transfer tubes, multiple valves inspection, storage supply goods inspection, and storage inspection. At the time of the production and cycle of auxiliary steam production, they performed duties, such as maintenance of auxiliary boiler, field equipment operation support at the time of the suspension of electric power plants, monitoring and operation of external facilities and water intake equipment, in the presence of Defendant regular employees.

B) Plaintiff 8, a cause of collecting chemical samples, performed sample analysis in addition to collecting samples 1 and 2 systems gases, and performed sample analysis work. Plaintiff 8 performed the work of identifying and injecting multiple spatching equipment sulfur, influence drugs, salt acid necessary for the operation of sea water charging facilities, and influences, etc., and performed the work of collecting and analyzing radioactive wastes. Defendant’s regular employees working in the relevant salt injection room, other than oxygen work, performed the work of demanding the suspension of salt generation of salt, suspending salt generation of salt after obtaining approval from Defendant’s regular employees, and conducting the direct recycling work of multiple spatch facilities, upon receiving an additional work instruction from Defendant’s regular employees from time to time, conducted the additional work by receiving various methods of operating and analyzing equipment necessary for performing the work from Defendant’s regular employees. In the absence of such work, Plaintiff 8 performed the additional work according to the Chemical Team Technology and the Vice Minister’s simple instruction.

C) Plaintiffs 4, 6, and 7, as the cause of subsidization of a substation, performed the tasks of preparing and delivering a written request for work at the time of entry of the number of visitors to a substation, entry into the register of visitors, preparation of a work request in the event of the occurrence of the need for maintenance, the tasks of operating the device to prevent the breakdown in accordance with the orders of the chief of the Defendant’s Development Department, the planning and general maintenance period to be conducted on an average of 1.5 days per year, the planning and maintenance period to be conducted on an average of 1.5 hours per year, and the tasks of operating the blocking in accordance with the orders of the Defendant’s regular employees or the head

6) The Plaintiffs received education from Defendant regular employees related to their duties before they were put into actual service, and carried out their duties accordingly. On October 4, 2006, in the case of Plaintiff 4, Plaintiff 6, and Plaintiff 7, the Plaintiffs received education from Defendant regular employees on the work rules, method, procedure, etc. after the occurrence of an accident due to the malfunction of the apparatus operation of the transformation station, and performed their duties accordingly.

7) During the process of assisting Plaintiffs 1, 2, 3, and 5 in the power generation and operation department, and Plaintiff 8 who is the cause of collecting chemical samples, the office of each department to which they belong was placed with the regular employees of the Defendant. The office of each department held before the start of the morning was present with the regular employees of the Defendant, and received caution and instructions as to the performance of their duties. While the power generation assistance work for Plaintiffs 1, 2, 3, and 5 is performed for 3 hours a day-day operated for 4 hours a day-day and 4 hours a day-day operated for 3 hours a day-day, and in the case of Plaintiffs 4, 6, and 7, an assistant to the transformation station operated for 3 hours a day-day or a day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-based-day-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-employee-employee-related-.

8) In the case of power generation assistants, chemical samples gathering sources, and substations assistants, the Plaintiffs received the signature of Defendant regular employees in the letter of approval on the site driving logs, gas inspection marks, gas container inspection marks, sea water harmful facilities inspection/measurements, driving record sheets, SSWYD Note 2) and logs prepared in the course of performing their duties.

9) The Plaintiffs merely received working clothes, safety shoes, safety caps, etc. from one light frequency, and received various portable equipment, such as a camera, residual salt analysis device, PH measuring instrument, computer, printer, chair, book book, net, and other office equipment, analysis reagents, etc. from the Defendant.

10) When the Plaintiffs want to take a leave of absence, on the part of their employees, vice-general, and team leader, they were prepared in advance and submitted to the Defendant to obtain approval in the order of the Defendant’s employees, vice-general, and team leader, according to the specific form set by the Defendant’s set up. On the other hand, the Ga light-frequency did not receive any notification of the Plaintiffs or the Defendant’s leave of absence, except for the exceptional circumstances that should be reflected in the calculation of the next month’s salary, and did not have any management thereof.

11) During the period from April 1, 2004 to March 31, 2006, Nonparty 1, the assistant boiler workers of the Ulsan Atomic Energy Headquarters No. 1 nuclear power plant, and Nonparty 2, the head office employee of the headquarters from June 4, 2008 to June 3, 2010, were appointed as a field agent. However, the Plaintiffs did not receive any instruction or supervision or education related to their duties from Han light ray or the above field agent. Korea Electric Power KS was appointed as the field agent from April 1, 2006 to December 31, 2006 to Nonparty 3, and Nonparty 4 from January 1, 2007 to May 31, 2008 to the field agent respectively, but the form of light at the time of appointment of the Plaintiffs did not differ significantly from the form of light operation.

【Ground of recognition】 In the absence of dispute, the statements or images of Gap 2 through 34, 36 through 42, 44 through 53, Eul 5 through 21, 23, 25 through 33, 34, 37 through 39, 47, 48, 53, 54 through 58, 68, 72, 73, 78, 78, 80, and 81, the testimony of non-party 5 and non-party 6, the testimony of non-party 7 (excluding the portion dismissed in the future) of the witness of the first instance trial, the result of the on-site inspection by this court, the purport of all pleadings

【Evidence Evidence】 Any of the statements or images mentioned in 74 through 76, 79, or any of the witness of the trial court Nonparty 7’s testimony

4. Determination

A. The main claim

1) Whether an implied labor contract relationship is established

If an employee employed by the employer of a third party and employed by the employer of a third party to be an employee of a third party, the employer of a third party is not merely a formal and nominal relationship with the labor agency of a third party, such as having no identity or independence as a business owner, and in fact, the relevant employee is in a subordinate relationship with the third party, and the actual payment of wages is a third party, and the other party to the provision of labor is also a third party, so an implied labor contract relationship between the relevant employee and the third party is established (see Supreme Court Decision 97Nu1946, Nov. 12, 199, etc.).

According to the above facts, it appears that the defendant had overall impact on the plaintiffs' labor relations, and that the service company has directed and ordered the plaintiffs' labor relations, on the other hand, on the other hand, the service company has separate rules of employment, employs its employees including the plaintiffs, has been subject to disciplinary action, the service company has paid all taxes including corporate tax, etc. as its own business entity, has subscribed to four types of insurance such as national health insurance, and the accounts and settlement of accounts are separate from the defendant, the service company has paid wages, etc. directly to its employees including the plaintiffs, and entered into an employment contract by negotiating labor income tax, withholding tax, year-end tax settlement, etc. separate from the service contract between the defendant and the service company, and it cannot be deemed that the service company is formally or formally a service contract between the defendant and the service company to the extent that it can be deemed that the service company has lost its identity or independence as its own business owner, and thus, it cannot be deemed that the labor contract relationship between the plaintiffs and the defendant has been established.

2) Sub-committee

Therefore, the plaintiffs' primary claims based on the premise that an implied employment contract relationship exists between the plaintiffs and the defendant are without merit.

B. Determination on the plaintiff 1's conjunctive claim and the plaintiff 6's conjunctive claim

1) Whether to recognize the temporary placement relationship for workers

The term “temporary placement of workers” refers to “the temporary work agency, after employing a worker, has a user company engage in work for the user company under the direction and order of the user company in accordance with the terms and conditions of the contract on temporary placement of workers after maintaining the employment relationship.” Whether a worker is temporary placement ought to be determined based on the substance of the employment relationship by comprehensively taking into account the specific nature, expertise, and technical nature of the purpose or subject of the contract, the existence of the substance of the contract and the independence in business management, the holding of the user company’s right to command and order in the implementation of the contract, etc., regardless of the form and pretext of the party concerned (see, e.g., Supreme Court Decision 2011Du707

The above facts and the evidence as follows. ① Development assistance work among the power generation technology assistance work specified in the service specifications, a considerable number of workers who take chemical samples, and substations assistant work need to be well-grounded, and it appears that the relevant plaintiffs cannot perform their duties independently unless there is any education or instruction given by the defendant regular employees. ② In the case of a person who performs the work for the power generation and operation division, and a chemical sample collection officer, the relevant plaintiffs were assigned to the same office as the regular employees, and were present at the same meeting, and were engaged in the work according to various instructions, such as receiving necessary instructions. ③ In the case of a power generation assistant, transformation assistant, who is operated as one day or on holidays, the defendant's regular employees did not have the authority to assign or change the plaintiffs' work site, and ④ The plaintiffs did not have the authority to do so for the direction and supervision of the relevant employees, ④ The defendant did not have the duty to notify the employees of the safety assistant, and ④ The defendant did not have the authority to do so for the change of the plaintiffs' work site.

2) Status of Plaintiff 1 et al. as workers and the Defendant’s obligation to employ Plaintiff 6

Article 6(3) of the former Dispatch Act provides that “If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiry of the two-year period.” Article 6-2(1) of the amended Dispatch Act provides that “If the user company continues to use the temporary agency worker for more than two years, the user company shall directly employ the relevant temporary agency worker.” The purpose of the former Dispatch Act or the amended Dispatch Act (hereinafter referred to as the “Dispatch Act”) is to “constition to improve employment security and welfare of the temporary agency worker by establishing the standards for working conditions, etc. of the temporary agency worker.” The standard for determining whether to apply the provision on the restriction on the period of secondment of the Dispatch Act is not the nature of the user company or the temporary work company. If the temporary work company is deemed to apply the same provision on the restriction on the period of secondment only if the user company continues to use the same temporary agency worker within the same period and the temporary work company is not subject to the same obligation to directly replace the temporary agency worker Act during the same period.

Therefore, in the case of Plaintiff 1, etc. to whom the former Dispatch Act applies, the employment contract relationship between Plaintiff 1, etc. was established on the day following the expiry of the two-year period from the date of dispatch to the instant power plant (on the day following the expiration of the two-year period from the enforcement date of the former Dispatch Act as of January 17, 1997) and Defendant 1, etc. on the day following the expiration date of the two-year period from the date of the dispatch to the instant power plant (on the day following the expiration of the two-year period from the enforcement date of the former Dispatch Act), and thus, in the case of Plaintiff 6, to which the amended Dispatch Act applies, it can be exercised as a judicial right from the day following the expiration date of the two

3) Defendant’s duty to pay wages or compensate for damages equivalent to wages

The defendant is obligated to pay the wages to the plaintiff 1, etc. who is a worker, and the plaintiff 6 is obligated to pay the amount equivalent to the wages as compensation for damages caused by nonperformance of direct employment obligation.

The fact that the plaintiffs received KRW 2,00,000,000, respectively, as monthly salary from Korea Lightwork as of the date of notice of termination of the contract of this case is without dispute between the parties. The defendant is obligated to pay the plaintiffs the amount of KRW 12,000,000, each of the damages equivalent to the wage or the amount equivalent to the wage from June 4, 2010 to December 3, 2010, which is part of the damages for the amount equivalent to the wage or the amount equivalent to the wage from June 3, 2010, which is the date of notice of termination of the contract of this case.

4) Sub-committee

Therefore, the plaintiff 1 is in the position of the defendant from July 1, 200 to February 28, 2001; the plaintiff 2 from February 1, 2001 to the plaintiff 3; the plaintiff 4 from November 19, 2004; the plaintiff 5 from September 18, 2004 to the plaintiff 7; the plaintiff 7 from October 4, 2006 to the defendant's worker status from May 20, 2004 to the defendant; the plaintiff 8 has a duty to seek the above confirmation; the defendant has a duty to make the plaintiff 6 express his intention of employment; the defendant has a duty to pay the plaintiff 12,00,000 won to the plaintiffs; the plaintiff 4 from November 19, 200 to December 2018, respectively; the rate of delay damages from the day after the day of service to the day of service of the complaint of this case to the day of service of the plaintiff 200% per annum.

5. Conclusion

Therefore, the plaintiffs' primary claim is dismissed as it is without merit, and the plaintiff 1's primary claim and the plaintiff 6's secondary claim are accepted as reasonable. Among the judgment of the court of first instance, the part concerning the plaintiffs' primary claim, the plaintiff 1's preliminary claim and the plaintiff 6's secondary claim are justified as it is in conclusion. Thus, the plaintiffs' incidental appeal and the defendant's appeal are dismissed as they are without merit.

Judges Kim Jong-tae (Presiding Judge)

(1) At the time of June 3, 2010, the Plaintiffs asserted only for the amount received from Han-ray Co., Ltd. as of June 3, 2010, and reserved the claim for the difference of wages with other workers who provide the same labor in the Defendant Company. The same applies hereinafter.

Note 2) Switch Yard, and a place where a mother line owned by the Korea Electric Power Corporation in a power plant, an open line, a steel tool, an machine base, and related ancillary equipment are installed.

3) The base date of the Plaintiffs’ respective damages for delay as to KRW 1,199,99 (=2,00,000 x 18 days/30 x 18 days) out of the damages corresponding to the wages or wages from November 16, 2010 to December 3, 2010 shall be deemed to have been determined on December 25, 2010 (the calculation period of the Defendant’s part-time workers and the calculation period of the wages for the full-time workers shall be from the 16th to the 15th day of each month, and the payment date of wages shall be deemed to have been made on the 25th day of each month, if the 25th day of each month is a holiday or Saturday, it shall be deemed to have been the day immediately preceding that of December 4, 2010). The Defendant’s assertion on delay damages from the date of commencing the Plaintiffs’ claim (see December 4, 2010).