207Shap 101054 Retirement pay

[Attachment 1] See [Attachment 1] List of Plaintiffs

[Judgment of the court below]

B Bank, Inc.

Law Firm Gyeongsung, Counsel for the plaintiff-appellant-appellant

[Defendant-Appellee]

October 2, 2008

October 23, 2008

1. The defendant shall pay to the plaintiffs listed in attached Form 1 1 【Retirement Allowance Calculation Table’ as stated in the separate sheet of Attached Table 2 【Retirement Allowance', and to this end, 6% per annum from the last day of each service period to July 17, 2008, and 20% per annum from the next day to the day of full payment.

2. The costs of the lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by considering the whole purport of the pleadings as a whole in each entry of Gap evidence 1 to 18 (including each number), Eul evidence 1 to 4 (including each number), and Eul evidence 1 to 4 (including each number):

A. The Plaintiffs were employed by Nonparty C Co., Ltd., D, E, F, and G banks on the first day of each service period indicated in the column of “service period” in [Attachment 2] retirement allowance calculation table, and each of the above companies was merged into Defendant Bank, and retired from office at the last day of each service period indicated in the same table, and retired from office on the last day of the same service period. The Plaintiffs received each corresponding amount stated in the column of “amount received” in the same retirement allowance calculation table for three months before retirement.

B. The defendant bank entered into a contract with debt collectors including the plaintiffs to collect delinquent credit cards and to provide services incidental thereto under the name of "a delegation contract", and the main contents are as follows.

(1) Eul (referring to the plaintiffs; hereinafter the same shall apply) shall deal with Gap (referring to defendant bank; hereinafter the same shall apply)'s credit card loans and collection of credit card-related arrears claims entrusted to Eul, and other affairs incidental thereto.

B shall not have a third party act on behalf of B without the consent of A. B. B. (3) Upon request of A, B shall report the matters concerning the execution of delegated affairs, and shall report the end of the delegation to A without delay even when the delegation is terminated.

(4) The fees and payment dates shall be determined separately by A.

C. After preparing and presenting the rules on the management of collection collection in addition to the delegation contract and the agreement on the collection of claims to the plaintiffs, the defendant bank will not raise an objection to the termination of employment of the collection company at will when "the defendant bank entered into an delegation contract with the collection company, was aware of the terms and conditions of the delegation contract, the management rules and the collection company's business agreement, and the collection company's business agreement, and violated the regulations and agreements." The main contents of the agreement are as follows.

(1) A (referring to Defendant Bank; hereinafter the same shall apply) may terminate a contract if the collection performance of Party B (referring to the Plaintiffs; hereinafter the same shall apply) is remarkably low and if the collection performance of Party B is a subordinate for two consecutive months (in accordance with internal guidelines), if there is a significant change in the personal situation of Party B, or if it is deemed that Party B cannot continue to act for any other reason.

(2) Farming shall be conducted to a higher person by subtracting the retained bonds if the results of recovery, the number of call calls, the number of verification inspections, the legal measures, and the compulsory execution are low.

(3) In any case, under which disciplinary action is taken against A by an illegal collection act. (4) No person shall engage in another business or workplace without Party A’s permission or engage in any monetary lending or arrangement by using information learned in the course of performing his/her duties.

(5) A complies with the time of the collection (8 A.M. and 9 P.M.) and engages in its work. (6) A agrees to conduct telephone monitoring, recording of the contents of the call, confirmation, etc. to check the proper performance of the collection service of B, and does not raise any objection to it in the future. (7) The term of the contract shall be three months from the date of the contract, but may be extended by three months, and the extension of the term of the contract shall be determined by A: Provided, That the extension of the term of the contract shall be notified in writing or verbally to B seven days prior to the expiration of the term of the contract.

(8) Matters concerning the criteria for selection of the poor who is the basis for termination of the contract.

- Comprehensive evaluation, taking into account civil petitions (including collection activities), attitudes, etc.;

- Persons with a low performance for two consecutive months

- The receiver of the warning to a person who has been sub-performance at least once;

-to be selected as average value for recovery of claims recently in short of personnel;

D. As above, the Plaintiffs, who were entrusted by the Defendant bank with the management of overdue credit cards and collection of overdue credit cards, received fees calculated by multiplying the principal’s debt collection performance by his fee rate by a section of collection rate, and the Defendant bank withheld business income tax on the commission paid to the Plaintiffs. The Plaintiffs did not subscribe to national pension insurance, workplace medical insurance, employment insurance, and industrial accident compensation insurance.

마. 원고들은 피고 은행이 제공하는 ' B카드 ㅇㅇ 채권관리센터 ' 라는 명칭의 장소에서 피고 은행이 지정한 책상, 컴퓨터를 사용하여 근무하였고, 원고들은 추심을 위한 현장 방문 등이 필요하면 팀장에게 보고한 후 외근하였으며, 통상 09 : 00까지 출근해서 18 : 30에 퇴근하였고, 출근시각인 09 : 00에 1주일에 3 ~ 4회 정도 미팅이 있었다 .

F. The Defendant bank established a branch office managing the debt collector 20 to 30 and the team leader managing the debt collector 5 to 7. The team leader performed the duty of education for the collector, the management of changes in the status, and the inspection of the collection records. Accordingly, the Plaintiffs reported the collection records on the day of 17:0 days to the team leader.

G. The Plaintiffs were provided by Defendant Bank with office files, identification cards, name cards, and computer IDs, and were provided with various expenses related to the collection of claims, such as telephone charges, postal service charges, and expenses incurred in the issuance of various documents, such as certified copies and certified copies of resident registration cards, but the Defendant Bank was paid by the Defendant Bank. However, the Plaintiffs personally borne with Handphones, transportation expenses, food expenses, parking expenses for the principal, and oil expenses incurred in the collection of claims.

2. Determination:

A. Determination as to whether the Plaintiffs are workers under the Labor Standards Act should be made on the basis of whether the form of contract is an employment contract or a contract for work. Determination as to whether the Plaintiffs are workers under the Labor Standards Act should be made on the basis of whether the employer provided work in a subordinate relationship with the employer for the purpose of wages. Determination as to whether a subordinate relationship exists should be made on the basis of whether the employer determines the details of work and is subject to the rules of employment or service (personnel), and whether the employer designates working hours and place and is detained by the employer, whether the employer is able to operate his/her own business on the basis of his/her own account, such as whether the employer owns equipment, raw materials, work tools, etc., or has a third party employ and act on behalf of the employer, and whether the risks such as the creation of profits and losses through the provision of labor, whether the nature of remuneration is the subject of employment contract, whether the basic salary or fixed wage was determined on the basis of withholding taxes, whether the employer has exclusive rights to wage and salary income, and the social security system or status of workers.

In addition, even if the employer does not receive specific and individual command and supervision from the employer in the course of performing his/her duties, the employer's right to command and order is changing to indirect and comprehensive due to diversification of employment and employment types today, and therefore, the decision of the command and order should be made flexibly in consideration of the characteristics of his/her labor. Furthermore, the independent business operator should consider the existence and degree of his/her own market access, whether he/she has an independent opportunity for profit and loss, whether he/she has a professional ability or economic ability, and whether he/she actually owns or manages tools or facilities necessary for his/her independent business implementation.

(2) According to the above facts, the contract between the plaintiffs and the defendant bank was prepared with the term "a delegation contract", and the fees were paid according to the performance without any basic pay, and business income tax was withheld, and the workplace medical insurance was not applied.

However, such circumstances are merely nothing more than the text of the contract that is not consistent with the substance of the provision of the relevant labor, or they are merely the fact that the Defendant bank, an employer, can arbitrarily determine in an economically superior position. Thus, it is merely an incidental draft that is insufficient to deem the Plaintiffs’ worker status as the circumstance behind the delegation contract. In essence, the delegation contract is essentially a special personal relationship

In terms of the basis of the employment contract, it is qualitative different from the employment contract, and in judging the legal nature of the changed employment type recently, it should not be viewed as a delegation contract only because it is against the contract's text or form due to the strict use subordinate relationship in traditional forms.

(3) According to the facts found earlier, the Plaintiffs are bound by Defendant Bank’s working place, working hours, etc.; ② Defendant Bank was provided with equipment, etc. provided by Defendant Bank; ③ was supervised by the team leader, the superior; ③ was unable to perform duties on behalf of a third party; and there was no possibility of providing labor in another workplace; ④ insofar as it is evident that monthly fees received by the Plaintiffs were paid as compensation for total labor, the nature as wages is not denied; ⑤ The service contracts or delegation contracts concluded by the Plaintiffs are expected to be continuously renewed, barring special circumstances.

Thus, the plaintiffs are essentially workers who provide labor to the defendant bank in their subordinate relationship for the purpose of wages, and the defendant bank is obligated to pay retirement allowances under the Act on the Guarantee of Workers' Retirement Benefits to the plaintiffs.

3. Calculation of the retirement allowances that the plaintiffs should receive;

A. Determination on the cause of the claim

The retirement allowances of the plaintiffs calculated by multiplying the average wage calculated on the basis of the wages paid by the plaintiffs for three months prior to their retirement by the number of continuous employment years are as stated in the attached Table 2 (Retirement Allowance Calculation Table).

Therefore, the defendant bank is obligated to pay to the plaintiffs the amount corresponding to the amount stated in the separate sheet of "legal retirement allowance" in the separate sheet of calculation of retirement allowance, and to pay damages for delay at each rate of 20% per annum under the Commercial Act from the last day of each corresponding service period stated in the "service period" column of the corresponding service period until July 17, 2008, which is the service date of the application for change of claim of this case and the date of service of the application for change of claim of this case, and from the next day to the day of full payment.

B. Judgment as to the defendant's assertion (1)

The defendant asserts that, in some cases, there is no evidence to acknowledge that the plaintiffs joined the defendant bank on the job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-based job-related job-related job-related job-related job-related job-related job-related job-related job

(2) Determination as to the period of continuous service of plaintiffs L and M

In full view of the purport of the entire arguments in the statements in Gap evidence Nos. 19, 22, 26 - 1, 26-2, and 27, the plaintiff M shall take account of the purport of the whole arguments.

1. On September 30, 1997, the first day of the service period of the plaintiff L, who was employed by the non-party E bank and engaged in claims collection business on or after being employed by each of its affiliated agencies on or around January 1, 1999, the employment of the plaintiff L succeeded to the employment of the E bank and the G bank established through the merger between the E bank and the F bank (former name of the defendant bank). The fact that the plaintiff L retired from the defendant bank on the last day of each service period stated in the "service period of the same retirement allowance calculation table" in the same retirement allowance calculation table as the defendant bank continued to engage in claims collection business at the defendant bank.

(3) Determination as to the period of continuous service by Plaintiffs 0 and P

In full view of the overall purport of the pleadings in evidence Nos. 23, 25, and 28, Plaintiff ○ may recognize the fact that Plaintiff ○ retired from Defendant Bank on the last day of each service period indicated in the “service period” column as stated in [Attachment 2 Retirement Allowance Calculation Table], which was the first day of the pertinent service period indicated in [Attachment 2], while Plaintiff ○ joined each Non-Party D Bank on Nov. 1, 2000 and conducting claims collection business on Feb. 1, 200, which was the first day of the pertinent service period indicated in the same, the Plaintiff ○ was a non-party E corporation, a telegraph of Defendant Bank by a merger, and the above E company was re-merged into Defendant Bank on Apr. 2004 and succeeded to employment due to a change in their affiliation, and thereafter, the fact that Defendant ○ retired from Defendant Bank on the last day of the pertinent service period indicated in the “service period” column as stated in the same calculation schedule. Therefore, the above Defendant’s assertion is without merit.

4. Conclusion

Therefore, each of the claims of this case is with merit, and it is decided as per Disposition by admitting it.

Judges Jeon Soo-tae

- Judges - Yellow Dust

Judges Hong Jin-young