[1] Legislative intent of Article 33(1) of the Employment Security Act, and validity of a labor supply contract which a labor supply business operator who did not obtain the permission of the Minister of Labor concludes with a person who received supply (negative)

[2] Standard for determining the governing law of a labor contract to which the former Conflict of Laws applies

[3] The case holding that the law governing the establishment of a labor contract is the law of our country in case where foreign pilots dispatched and worked for a domestic aviation company in accordance with a labor supply contract concluded between a foreign labor supply business entity and a domestic aviation company claim for retirement allowance against a domestic aviation company

[4] The elements to regard a person employed by the plaintiff employer as an employee of a third party and engaged in the third party's business at the third party's place of business, and the elements to recognize an employment contract relationship between the dispatched worker and the third party who received the supply in violation of the Employment Security Act

[5] The case denying the establishment of a labor contract relationship between the domestic air service company and its foreign pilot dispatched a foreign pilot under a contract for the supply of a pilot concluded with a foreign labor supply business entity

[1] Under Article 33(1) of the Employment Security Act, only a person who has obtained the permission of the Minister of Labor while prohibiting a labor supply business in principle is recognized. The fundamental purpose of this is to prevent the existing termination of making a profit by participating in another person's employment or taking profits from wages and other workers in middle, and to contribute to the promotion of vocational stability and the development of the national economy by respecting the free will and interest of workers. If a supply contract entered into between a labor supply business operator who has not obtained the permission of the Minister of Labor and a labor supply business operator who has not obtained the permission is regarded as valid, it would not only lead to allowing a person to gain profits by participating in another person's employment for profit, but also bring about the result that is obviously contrary to the purpose of the Employment Security Act. Thus, a labor supply contract concluded between an unauthorized labor supply business operator and a person who receives the supply

[2] Article 9 of the former Conflict of Laws (amended by Act No. 6465 of Apr. 7, 2001) provides that the law shall be applied to the establishment and validity of a juristic act by the parties' intent, and if the parties' intent is not clear, the law shall be applied to the law of the place of such act. In a case where there is no express agreement between the parties on the choice of the governing law in a labor contract, the parties' implied intent shall be presumed based on the contents of declaration of intention, other than the governing law included in the labor contract, the parties' attitude expressed through the litigation, etc. In a case where it is not possible to presume such implied intention, the parties' implied intent shall be presumed. In full view of the various objective circumstances such as the parties' nationality, address, etc., the establishment of the governing law of the juristic person which is the employer, the place of payment of labor, and the details of duties, the governing law may be determined by presumptioning the assum intention that

[3] The case holding that the law governing the establishment of a labor contract is the law of our country in case where foreign pilots dispatched and worked for a domestic aviation company in accordance with a labor supply contract concluded between a foreign labor supply business entity and a domestic aviation company claim for retirement allowance against a domestic aviation company

[4] If a person employed by the plaintiff's employer and engaged in a third party's work at the third party's workplace, who is employed by the third party's employer, is an employee of a third party, the plaintiff's employer is merely a formal and clear purpose, such as having no identity or independence as an employer, which can be deemed to be identical to the third party's labor agency. In fact, the defendant's employer is in a subordinate relationship with the third party, and the person who actually pays wages is a third party, and the third party is also a third party, and the labor contract is established at the same time. Thus, in cases of illegal labor supply in violation of the Employment Security Act, it cannot be deemed that the labor contract is established directly between the worker and the person who received the supply regardless of the labor relationship between the worker and the third party, and only if it can be deemed that the above implied labor contract relationship is established, it can be deemed that the worker who received the supply person's work is an employee.

[5] The case denying the establishment of a labor contract relationship between the domestic air service company and its foreign pilot dispatched a foreign pilot under a contract for dispatching a foreign pilot with a foreign labor supply business entity

[1] Article 33 (1) of the Employment Security Act, Article 8 of the Labor Standards Act / [2] Article 9 of the former Conflict of Laws (amended by Act No. 6465 of April 7, 2001) (see Articles 25 and 28 of the current Private International Act) / [3] Article 9 of the former Conflict of Laws (amended by Act No. 6465 of April 7, 2001) (see Articles 25 and 28 of the current Private International Act) / [4] Articles 14 and 17 of the Labor Standards Act / [5] Articles 14 and 17 of the Labor Standards Act

[1] Supreme Court Decision 84Do2858 delivered on June 11, 1985 (Gong1985, 1032) / [4] Supreme Court Decision 97Nu19946 delivered on November 12, 199 (Gong1999Ha, 2525) Supreme Court Decision 2003Du3420 delivered on September 23, 2003 (Gong2003Ha, 2095)

Bable Llodar Flaz et al. (Law Firm Dog Law Office, Attorneys O Jae-joon et al., Counsel for the defendant-appellant)

Asian Aviation Co., Ltd. (Law Firm Squa, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na15100, 15117 decided September 10, 2002

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Regarding ground of appeal No. 1

The primary purpose of Article 33(1) of the Employment Security Act is to prohibit labor supply business, in principle, only those who obtained the permission of the Minister of Labor while prohibiting labor supply business is to ensure the stability of the occupation and to contribute to the development of the national economy by preventing the previous termination of employment, which takes profit by participating in the employment of others, or by taking out wages and other benefits from middlely, and by respecting the free will and interest of workers (see Supreme Court Decision 84Do2858, Jun. 11, 1985, etc.). If a labor supply business operator who did not obtain the permission of the Minister of Labor concludes a supply contract with a person who receives the supply, instead of the Act prohibited under Article 8 of the Labor Standards Act, to obtain benefits by participating in the employment of others for profit, and as such, it is obviously contrary to the purport of the Employment Security Act, it shall be deemed that a labor supply contract concluded between an unauthorized labor supply business operator and a person who receives the supply in violation of the Employment Security

The judgment of the court below which held that a worker supply contract in violation of Article 33 (1) of the Employment Security Act is valid is inappropriate, but it cannot be said that there is an error of law that adversely affected the conclusion of the judgment with respect to the establishment of a labor contract relationship between the plaintiffs and the defendant as seen below. Thus, the ground of appeal on this issue is rejected.

2. Regarding ground of appeal No. 2

A. According to the reasoning of the first instance judgment cited by the lower court, the lower court rejected Defendant 2’s employment agreement that the Defendant Company was not obligated to provide the Defendant Company’s own services to the Defendant Company on August 17, 192 or its employees, and that the Defendant Company was not obligated to provide the Defendant Company’s own services to the Defendant Company and to pay a certain amount of fees to the Defendant Company in addition to the level of its own wages (hereinafter “the first contract”). On September 20, 1994, the said contract was terminated, and that the Defendant Company’s employees were not obligated to provide the Defendant Company’s own services to the Defendant Company on the premise that it would not be subject to the Plaintiff Company’s 1’s employment contract with the Defendant Company’s employees under the 19BB Agreement, and that the Plaintiff Company would also be subject to the Plaintiff Company’s 1’s employment contract with the Defendant Company’s employees under the 192 Agreement with the Defendant Company’s employees, and that the Defendant Company would also be subject to the Plaintiff Company’s 1 and the Defendant Company’s employees.

B. In this case, where the plaintiffs of French nationality claim that they had a labor contract relationship with the defendant company and sought the payment of retirement allowances, since it constitutes a legal relationship with a foreign element, its applicable law should be decided first, and this case should be governed by the former Conflict of Laws (amended by Act No. 966 of Jan. 15, 1962 and amended by the Special Act No. 966 of Apr. 7, 2001) as a matter arising prior to the enforcement of the Private International Act, which occurred prior to the enforcement of the Private International Act.

In the past, Article 9 of the Conflict of Laws provides that the law shall be applied to the establishment and validity of a juristic act by the parties' intention, and when the parties' intention is not clear, the law shall be applied to the law of the place of the act. In a case where there is no express agreement between the parties on the choice of the governing law in a labor contract, the parties' implied intent shall be presumed based on the contents of declaration other than the governing law included in the labor contract, the attitude of the parties expressed through the litigation, etc. In a case where such implied intent cannot be presumed, the parties' intention shall be presumed. In full view of the various objective circumstances such as the parties' nationality, domicile, etc., the governing law of the juristic person which is the employer, the governing law of the juristic person which is the employer, the place of labor payment, and the job contents, the governing

In this case where there is no explicit employment contract between the plaintiffs and the defendant company, the plaintiffs' daily payment of labor services cannot be deemed to be our country, but the defendant company, the receiving party of labor services, is our country corporation, and considering the circumstances in which the plaintiffs claim in this case under the Korean Labor Standards Act, the governing law on the establishment of employment contract relations between the plaintiffs and the defendant company shall be deemed to be the law of our country.

C. If an employee employed by the employer of a third party and employed by the employer of a third party who is engaged in the work of a third party is an employee of a third party, the employer of the third party is merely a formal and explicit purpose, such as having no identity or independence as the employer, and the employee in question is in a subordinate relationship with the third party. In fact, the employee in question is a third party, and the party who is actually paid wages is a third party and the third party is also a third party, so an implied labor contract relationship between the employee in question and the third party is established (see Supreme Court Decision 97Nu1946 delivered on Nov. 12, 199). Thus, even in cases of illegal supply in violation of the Employment Security Act, a labor contract relationship between the employee in question and the person who receives the supply regardless of whether the labor relationship between the employee in question is a labor supplier and the person who receives the supply can not be deemed to be established. It can be deemed to be a worker who receives the supply of the worker in the business of the person who receives the above implied labor contract.

According to the facts and records acknowledged by the court below, the plaintiffs are the pilots employed by Pakistan or BBA, who provided labor to the defendant company under the orders of the above company, and the defendant company received pay from the above company. In addition to those who received labor orders from the plaintiffs, the defendant company did not have any circumstance of exercising personnel rights or disciplinary actions against the plaintiffs in accordance with the general labor direction right as an employer, and there is no circumstance that the strike flight navigator or BBA lacks independence and there is no reason to see that the defendant's implied labor contract relationship between the plaintiffs and the defendant company is established.

Although the judgment of the court below, which held that the first and second contracts with the defendant company in violation of the Employment Security Act are valid, it is inappropriate to determine the court below, which held that the contract between the plaintiffs and the defendant company is valid, it is just in the conclusion of denying the establishment of labor contract relations between the plaintiffs and the defendant company, and it is not erroneous in the misapprehension of legal principles as to the establishment of labor relations between the supply recipient and the worker as alleged in the ground

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)