2013Na51201 Retirement Allowance, etc.

1. A;

2. B

3. C.

4. D;

5. F;

6. G.

7. H;

8.

9. J.

K corporation

Seoul Northern District Court Decision 2012Gahap3085 Decided July 17, 2013

July 23, 2014

August 29, 2014

1. Of the judgment of the court of first instance, the part against the plaintiffs is modified as follows.

A. The defendant shall pay to the plaintiffs 20% interest per annum from April 20, 2012 to the day of full payment of each corresponding amount in the separate sheet for calculation of retirement allowances.

B. All remaining claims of the plaintiffs are dismissed.

2. Of the total litigation costs, the part arising between Plaintiff A, B, C, D, F, and the Defendant is 80% of the part arising between Plaintiff H and the Defendant; the remainder is 90% of the part arising between Plaintiff H and the Defendant; the remainder is 90% of the part arising between Plaintiff A and the Defendant; the remainder is 60% of the part arising between Plaintiff J and the Defendant; and the remainder is 60% of the part arising between Plaintiff J and the Defendant.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

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

1. Facts of recognition;

A. The Defendant is a company that operates M and N(hereinafter referred to as “LA”) in Seoul Special Metropolitan City, Nowon-gu. The Plaintiffs driven school buses at L, while the buses operated by the Plaintiffs were owned by the Plaintiffs, but the name of ownership registration was future.

B. The Plaintiffs received the basic salary based on the vehicle size from the Defendant. The Plaintiffs are roughly KRW 1.5 million for large-scale 15 passenger drivers, KRW 1.8 million for 25 passenger drivers, KRW 2 million for 35 passenger drivers, and KRW 2.1 million for 45 passenger drivers. Each of the Plaintiffs’ basic salary is as indicated in the “basic salary schedule” column for the calculation of retirement allowances.

C. The Plaintiffs received payment from the Defendant the remainder of the amount calculated by deducting the amount of wage and salary income tax, liquor tax, national pension premium, national health insurance premium, employment insurance premium, etc. and retirement allowances, vehicle oil card expenses, automobile insurance premium, and fines for negligence incurred from automobile operation, etc., in addition to the basic wage, fuel allowance, continuous service allowance, etc. for vehicle operation. The Defendant paid all the amount of the Plaintiffs’ wage and salary income tax, resident tax, national pension premium, national health insurance premium, employment insurance premium, and industrial accident compensation insurance premium (so-called 4th insurance premium)

D. The "Special Agreement on Vehicle Operation" written by the plaintiffs and the defendant provides that the plaintiffs' holidays shall be given on Sundayss and legal holidays that are the defendant's holidays, but in case of operating holidays, allowances shall be separately paid), and the area and frequency of operation shall comply with the defendant's operation policy, and if the plaintiffs' unauthorized absence from work during operation causes interference with the transportation of the defendant's students, the plaintiffs shall be subject to disciplinary action in accordance with the defendant's vehicle management regulations, and the plaintiffs shall not transfer their contractual rights to others, and the vehicle shall be colored in the color and form designated by the defendant and shall not change their colors arbitrarily. In addition, if the operation of the plaintiffs is impossible due to the reasons recognized by the defendant, the defendant shall notify the defendant and may operate the lending and vicarious driving at the defendant's expense, and the defendant must report it to the defendant in advance through the counseling office and the head of the vehicle.

E. During the vacations, the Plaintiffs generally driven a vehicle between 8:30 to 9:30 on a daily basis, around 13:00 to 20:0 on a day ( Sundays 13:00 on a Sundays), between 16:30 to 23:30 on a day during a semester (round 13:30 on a Saturday, between 13:0 to 20:00 on a Saturday, and around 9:0 to 21:0 on Sundays), and sent the students by driving the vehicle in accordance with the vehicle operation schedule and route set by the Defendant according to the hours of their attendance, etc., while during the said operation hours, the Plaintiffs did not provide a parking space and a resting room within a fish driving school, and thus, maintained the vehicle at one’s own house and maintain the vehicle by taking rest or identifying each other.

F. The Defendant: (a) placed the chief of the vehicle and the chief of the vehicle; (b) placed them on a regular basis; (c) placed them in order to manage and check the vehicle operation by coordinating the operating hours and routes of the front vehicle; and (d) deliver instructions to the Plaintiffs; and (c) set up a vehicle management manual for the employment, wages, working hours, vacations, and the implementation of the standing point system; and (d) made them available to the employees in charge of these manual. As to the “employment of vehicles” in the above manual, the health examination certificate, resident registration certificate, etc. shall be submitted when the employment becomes final and conclusive; and (d) has certain qualifications (such as those with recognized working attitude and sincerity; (d) recommended by the head of the vehicle and the promotion of the vehicle; (e) have been recommended by the head of the vehicle; and (e) have no history of accident within the last two years; (e) have been changed to regular vehicles; and (e) has been given a special agreement on the operation of the vehicle, annual salary contract and employment contract. In addition, the above manual clearly has contributed to the Defendant’s to the maintenance of the vehicle.

G. In one year, the Defendant called up a driver of all driving vehicles including the two half-year LA, notified the results of the vehicle coordination meeting, provided a kind of education at least once a quarter, and provided a civil petition from the parents of the educational institute students, or did not operate a vehicle, the Defendant sent the civil petition to the drivers of the educational institute, including the Plaintiffs, and sent the warning to the drivers of the vehicle, or urged the notice and re-contract (the head of the personnel management team) to adjust the benefits when concluding the contract (the head of the Defendant’s representative director’s T (the head of the personnel management team) in the course of investigating the violation of the Labor Standards Act against S against the representative director S.).

아. 피고는 등원 차량 운행시간표, 차량도색일정표, 차량 노선표, 차량 퍼레이드 계획표, 차량별 탑승인원 명단, 차량 운행계획표 등을 작성하여 원고들에게 교부하였는데, 특히 매주 교부하는 차량 운행계획표의 공지사항, 전체회의 전달사항란을 통하여 '등하원 지도를 철저히 해줄 것, 차량출발시간을 철저하게 지킬 것, 운행시 신종플루 예방을 위하여 마스크를 착용할 것, 등하원시 유니폼과 넥타이를 착용할 것, 운행 중 에어컨 가동을 해 줄 것, 차량 현수막을 꽹펭하게 부착해 줄 것, 차량 내 냄새가 나지 않도록 청결을 지켜줄 것, 차량 외부청소, 수리, 외부도색에 신경쓸 것, 작은 차량사고도 상담실, 차량 부장, 담당자에게 보고하는 체계를 지켜줄 것, 학생 및 학부모에게 친절하게 대할 것, 하원시 정류장마다 큰소리로 미리 알려줄 것, 신입생 학부모가 노선을 문의할 때에는 최대한 상세하게 설명해 줄 것' 등의 차량운행시의 준수사항을 지시하였으며, 원고들 차량에 GPS를 설치하여 차량의 위치를 상시 파악하였다.

I. The Defendant, in addition to the vehicle operation, had the Plaintiffs provide safety guidance for the private teaching institute students at crosswalks, etc., and let the Plaintiffs wear a banner and display a vehicle display to promote the private teaching institute.

[Reasons for Recognition] Facts without dispute, Gap's 3 through 11, 13 (including additional numbers), Eul's 1, 5, and 21, and the result of the examination of the party concerned against the plaintiff A and B, the purport of the whole pleadings

2. A claim for retirement allowances;

A. Whether the plaintiffs are the defendant's workers

1) Relevant legal principles

Determination as to whether a contract constitutes a worker under the Labor Standards Act is a contract for employment or a contract for work, depending on whether an employee provided work in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Determination as to whether a dependent relationship exists shall be based on the content of work determined by the employer, and shall be subject to rules of employment or regulations of service, etc., and shall be subject to considerable direction and supervision by the employer in the course of performing work, whether the employer is subject to designation of working hours and working place, whether the employer is able to operate his/her business on his/her own account, whether the labor provider is able to own equipment, self-employed materials, work tools, etc., or have a third party employ and act on behalf of the employer, etc., whether the nature of remuneration was the subject of work, whether the nature of remuneration was determined, whether the basic wage or fixed wage was determined, whether the continuousness and degree of employment relationship with which the employee provided was exclusive, and whether the status of an employee is recognized under the social security system, etc. (see, e.g., Supreme Court Decision 2006Da29484.

2) The following circumstances revealed through the above evidence and the facts acknowledged. ① Operation of private teaching institutes is closely connected to private teaching institutes and is recognized as part of services provided by private teaching institutes, from the defendant’s standpoint, it is highly necessary to direct and supervise the plaintiffs, and the defendant actually granted disciplinary rights to vehicle engineers according to such special circumstances and manuals. The defendant paid a distance to the defendant according to such special driving rules and manuals, and imposed sanctions such as warning, early driving, reduction of remuneration, etc. The defendant allowed the plaintiffs to drive a specified course, and as a matter of principle, it is prohibited from driving a vehicle on behalf of the driving officers, and the defendant did not appear to have been subject to reasonable direction and supervision for the plaintiffs, even if it appears that the plaintiffs were under the jurisdiction of private teaching institutes and their employees, and it is not necessary that the plaintiffs were under the jurisdiction of private teaching institutes and their employees to freely use the vehicle for other reasons.

(b) Occurrence of liability to pay retirement allowances;

Therefore, the defendant is obligated to pay retirement allowances under the Guarantee of Workers' Retirement Benefits Act to the plaintiffs.

3. Calculation of retirement allowances;

(a) Facts of recognition;

1) The Plaintiffs worked at a fish driving school during the pertinent period of service as listed below.

2) The Plaintiffs received from the Defendant each amount of money indicated in the column “the amount received” as follows, including the basic salary, continuous service allowances, oil allowances, etc. for three months before their retirement.

3) From the Defendant, Plaintiff C received KRW 3,469,50, and Plaintiff G received KRW 6,000 as retirement allowance.

A person shall be appointed.

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 14 through 22 (including additional numbers), Eul evidence No. 21, the purport of the whole pleadings

(b) Amount of retirement allowances;

Based on the above facts of recognition, the statutory retirement allowance calculated by multiplying the average wage calculated on the basis of the wages received by the plaintiffs for three months prior to their retirement by the number of continuous service years is written in the annexed retirement allowance calculation table. The reason why both parties to the calculation of average wages are stated in the corresponding part of the judgment of the court of first instance (Article 10-1(3) of the Civil Procedure Act). Therefore, this is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Judgment on the defendant's assertion

The reasoning for the court's decision in this part is as follows, and it is identical to the corresponding part of the reason for the court of first instance (as stated in section 11-14(d)). Thus, this is cited by the main text of Article 420 of the Civil Procedure Act.

From the 13th bottom to the 0th 13th m, the 38th mar "B" shall be read as the 38th mar (including the mar number). The 14th mar "No. 25, 2010" shall be read as "No. 2, 2010."

5. Conclusion

Therefore, the defendant is obligated to pay the plaintiffs the amount of money indicated in the "legal retirement allowance table" column of the attached retirement allowance calculation sheet to the plaintiffs after deducting the amount of money paid by the plaintiff C and G as retirement allowance, and to pay damages for delay at the rate of 20% per annum as stipulated in the Labor Standards Act from April 20, 2012 to the date of complete payment, which is the day of delivery of the copy of the complaint of this case sought by the plaintiffs, from April 20, 2012 to the day of full payment. The plaintiffs' claims are accepted within the above recognition scope, and the remaining claims against the plaintiffs are dismissed due to the lack of reasonable grounds. Since the part of the judgment of the court of first instance against the plaintiffs is partially unfair and its conclusion is modified, it is so decided as per Disposition.

The presiding judge, senior senior judge;

Judge Lee Young-young

Judges Hong Young-young

1) Although the Plaintiff B asserted that the total sum of basic salary, continuous service allowance, and oil allowance paid on June 2010 and the total amount of KRW 2,488,500 is KRW 2,48,500, the result of the order to submit documents to

According to the A, the facts of 2488,00 are recognized.

2) The Plaintiff G’s total basic pay and other allowances paid on July 201 KRW 3,200,000 (basic pay 2,100,000 + oil allowances of KRW 660,00,000, and flower transportation

However, there is evidence that the defendant was paid with the chemical operation allowance on July 2011, 201, asserting that it is KRW 200,000, and continuous service allowance of KRW 240,000.

(2) the Corporation.

3) The Plaintiff H’s basic salary and other allowances that the sum of the monthly salary paid during the three months prior to his retirement was KRW 3,69,080 (basic salary KRW 2,00,000 + oil allowances.

59,080 won + 240,000 won for continuous service + 500,000 won for low-distance service + 400,000 won for long-distance service, but Gap evidence 19

Re-recognition is not sufficient to recognize that the Defendant was paid with stowing operation allowances and long-distance allowances for three (3) months prior to his/her retirement, and otherwise recognized.

name of KRW 59,080 in excess of KRW 448,50 on September 4, 2010, KRW 448,500 on October 4, 2010, KRW 453,80 on November 453, 2010, or KRW 559,080 on November 4, 2010.

there is no evidence to prove this.

4) The Plaintiff 1’s basic salary and other allowances that the sum of the monthly salary paid during the three months prior to his retirement was KRW 3,308,800 (basic salary KRW 2,000,000 + oil allowances.

568,800 won + 500,000 won + 240,000 won for continuous service allowances, but only the description of Gap evidence 20 leaves from the Defendant

It is not sufficient to recognize that he was paid with stowing operation allowances for the three months preceding the position, and there is no other evidence to recognize it, and the oil allowances are 2010.

19. There is no evidence to prove the name in excess of 448,500 won, 448,500 won on October 4, 2010, and 568,800 won.

5) The plaintiff J shall pay 3,200,000 won (basic salary of KRW 1,500,000 + oil allowances of KRW 3,200,000) in total received every month for three months prior to his retirement.

560,000 won + 500,000 won for the operation of the chemical earth + 240,000 won for continuous service allowances + 400,000 won for long distance allowances, but the chemical earth operation allowances;

There is no evidence to acknowledge that long-distance allowances have been paid, and there is no evidence to recognize the name of 560,000 won exceeding 358,800 won of the oil allowances.