The defendant shall be innocent.

1. The summary of the facts charged is the representative of the FJ in Seoul E-building 701, who employs 15 full-time workers and operates a private teaching institute business in Gangnam-gu.

From December 1, 1999 to December 1, 2008, the Defendant did not pay an amount equivalent to KRW 14,344,829 of retirement allowances to G workers who worked as an instructor at the pertinent private teaching institute within 14 days from the date of retirement without an agreement between the parties on the extension of the due date.

2. Determination

A. The alleged defendant and defense counsel asserted that G is not an individual business operator but an employee, and that the defendant did not have intention to violate the duty to pay retirement allowances.

B. (1) Determination of whether a person is a worker under the Labor Standards Act ought to be made in accordance with whether a contract form is an employment contract or an employment contract, and whether an employee in substance provides labor to an employer in a subordinate relationship with a business or workplace for the purpose of wages.

In this context, whether an employer has a subordinate relationship with the employer, who is subject to the rules of employment or service regulations, etc., whether the employer orders and supervises the employer in the course of performing the work, whether the employer is designated working hours and working places and is bound by the employer, whether a labor provider is capable of operating his/her business on his/her own account, whether he/she has a risk, such as the creation of profit and the occurrence of loss through providing labor, whether his/her nature of remuneration is the subject of work, whether the basic salary or fixed wage has been determined, whether the employer has a continued relationship with the provision of labor, whether the employer has exclusive responsibility for the employer, and whether the status of an employee under the social security system is recognized.