The nature of the so-called labor contract which the contractor shall be liable for damages as the employer;

The labor contract relationship between the contractor and the contractor, which is liable for damages as the employer, is recognized only when the direction or the corresponding relationship between the contractor and the contractor is established by ordering a specific act or contracting a specific project.

Articles 757, 756, and 664 of the Civil Act

Supreme Court Decision 65Da1688 delivered on October 19, 1965 (No. 1502 Supreme Court Decision No. 13209 delivered on June 13, 1965, Supreme Court Decision No. 756(41)54 delivered on the summary of the decision)

Plaintiff 1 and four others

Defendant

Seoul District Court Incheon District Court (76Gahap117)

Among the original judgment, the part against the defendant shall be revoked and the plaintiffs' claims against the above revocation shall be dismissed.

The plaintiffs' appeal is dismissed.

The costs of lawsuit in the first and second instances shall be borne by the plaintiffs.

The defendant shall pay to the plaintiff 1 the amount of 2,121,173 won, 200,000 won to the plaintiff 3 and 4, 3,742,346 won respectively, 1,921,173 won to the plaintiff 5, and the amount of 5% per annum from August 20, 1975 to the plaintiff 5.

Judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

(Plaintiffs) The part against the plaintiffs in the original judgment shall be revoked.

The defendant shall pay to the plaintiff 1 an amount of 1,521,173 won, 150,000 won to the plaintiff 2, 2,192,346 won to the plaintiff 3, 2,692,346 won to the plaintiff 4, 1,371,173 won to the plaintiff 5, and 5 percent of the annual amount from August 20, 1975 to the full payment.

The costs of lawsuit shall be borne by the defendant in both the first and second trials and a declaration of provisional execution.

(Defendant) It is so ordered as per Disposition.

1. As to the Defendant’s liability for damages, there is no dispute over the fact that at around 10:30 August 19, 1975, the deceased Nonparty 1 died due to uniforms, internal blood transfusions, internal heat, etc., which were set up on the second floor outer walls of the building in the construction site of the Defendant’s public bath and inn building.

The plaintiffs argued that the above accident caused the error of construction supervision, caused the incomplete installation of the sprink, which is a safety facility, and caused negligence not equipped with the facility for preventing the fall accident, and that the defendant's accident caused by negligence in supervising the construction work by the non-party 2 and the non-party 3, who is the defendant's employee, is liable for damages as the employer, and that the defendant's negligence caused the above non-qualified person to supervise the construction work under the Building Act and the Certified Architects Act, and that it is a tort by the defendant's negligence. The defendant ordered the above construction work to the non-party 2, and the non-party 3 again ordered the construction work to be subcontracted by the non-party 2. The non-party 3 asserted that there was no fact that the defendant had ordered and supervised the construction work again, and that

In light of the above facts, it is difficult for the Defendant to use Nonparty 4’s construction work to see that the construction work was carried out by Nonparty 4, Nonparty 2’s construction work without any dispute, and that Nonparty 3’s order and construction work was carried out by Nonparty 4 to the extent that the construction work was carried out by Nonparty 8’s construction work, and that Nonparty 2’s order and construction work was carried out by Nonparty 4 to the extent that the construction work was carried out by Nonparty 6’s order and construction work without any change in the size of the construction work, and that Nonparty 4’s order and construction work was carried out by Nonparty 3 to the extent that the construction work was carried out by Nonparty 6’s order and construction work without any change in the size of the construction work, and that the construction work was carried out by Nonparty 4’s order and construction work without any change in the size of the construction work to the extent that the construction work was carried out by Nonparty 6’s construction work without any change in the size of the construction work.

Therefore, according to the above facts of recognition, it is apparent that the death of the deceased is a tort by negligence committed by the non-party 8 and the non-party 3 who neglected the duty of care for safety management of the deceased and the non-party 3 who supervised the negligence of the deceased, including the above deceased. However, the defendant cannot be held liable for tort to the defendant unless he was responsible for supervising the contractor and the subcontractor and the employees employed by the above persons and did not actually direct and supervise the work.

In the labor contract, the plaintiffs claim that the contractor shall be liable for tort as the contractor's employer. However, as seen above, when the defendant executes the construction work, the construction itself provided by the defendant and the above persons receive the construction. However, the so-called labor contract which is held liable for compensation as the contractor's employer for tort is not recognized as a whole over all labor or labor union's contract, but is recognized as the employer's liability for compensation only when the direction or supervision between the contractor and the contractor is established by ordering a specific act or awarding a specific project (this can be referred to as a legal relationship of the nature combined with the employment relationship). Thus, the contract relationship between this case and the contractor cannot be seen as a pure contract relationship, and the plaintiffs' assertion is without merit (see Supreme Court Decision 65Da1688, Oct. 19, 1965).

In addition, regarding the plaintiffs' assertion that the non-party 2, 8, who is not qualified as a supervisor of construction work under the Building Act and the Certified Architects Act, was negligent in supervising or contracting the construction work by the defendant, the non-party 2, 8, and 3 who supervised the construction work by receiving the above construction contract and supervising the construction work is a person who is not qualified as a supervisor of construction work due to illegality, and the supervision of construction work does not mean the direction and supervision of construction work (Article 2 (3) of the Certified Architects Act provides that the act of confirming whether the construction work is implemented according to the design is defined as the execution supervision act). Thus, it cannot be recognized that there is any illegality or negligence in making the above person contract for construction work and that there is the defendant's gross negligence in the contract for the above person, so the above assertion by the plaintiffs cannot be accepted

2. Therefore, as long as the defendant cannot be found liable for damages, the part against the defendant in the original judgment against the defendant should be revoked in an unfair manner, and the part against the defendant in the original judgment against the defendant should be dismissed, and the claim of the plaintiffs and the appeal by the plaintiffs shall be dismissed, and the costs of lawsuit in the first and second instances shall be borne by the plaintiffs against the defendant as the losing party.

Judges Kim Dal-sik (Presiding Judge)