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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant (De facto Error and misunderstanding of legal principles) (1) E and F (hereinafter “victims”) do not provide their labor in subordinate relationship to D Co., Ltd. operated by the Defendant, but do not constitute workers under the Labor Standards Act.
(2) Even if the above employee’s monthly salary, annual salary, and retirement allowance are paid to the victimized employee, the amount of wages, which are the basis of the calculation of the employee’s monthly salary, annual salary, and retirement allowance, shall be the remainder of the rent paid by the said company to the victimized employee, excluding the vehicle remuneration, and the sum of unpaid monthly salary, annual salary, retirement allowance, etc. (hereinafter “ unpaid monthly salary, etc.”) calculated accordingly is 31,320,529 won, and unpaid monthly salary, etc. for F is merely 17,893,706 won.
B. The lower court’s sentencing of a fine of KRW 5 million (the suspended sentence of a fine of KRW 5 million) is deemed to be too unfortunate and unfair.
2. Determination
A. As to the Defendant’s assertion of mistake of facts and misapprehension of legal principles, whether a person is an employee under the Labor Standards Act (A) shall be determined depending on whether the form of a contract is an employment contract or a subordinate relationship with the employer for the purpose of wage at the business or workplace in substance. Whether there is a subordinate relationship as seen above shall be determined by the employer’s contents of work, and shall be subject to the rules of employment or the rules of service (Personnel). Whether the employer has considerable direction and supervision in the process of performing work, whether the employer designates working hours and place and is detained by the employer, whether the employer is allowed to operate the business on its own account, whether the labor provider may own own own possession of equipment, raw materials or tools of work, or cause profit and loss by providing labor.