Section 1: Parties and Need for Remedy
Chapter 1: Employees
2. Determination of the Existence of Executive's and Internal Subcontractor[so-sa-jang]'s Employee Status under the Labor Standards Act
2.1 Registered Executive
| Supreme Court Decision on September 7, 2017, Case 2017du46899 (Recognition of the Employment Status of a Registered Executive) | |||||
| * Plaintiff, Appellant: Party A
* Defendant, Appellee: Korea Worker’s Compensation & Welfare Service 1. Facts a. The plaintiff's (Party A) father, Nonparty 1, built a house and a chicken coop around 1997 in ○○ city and operated a poultry farm under the business name '○○ Farm.' In February 2006, he reorganized the operation into '○○ Agricultural Cooperative Corporation' and became its representative director. b. Party A became a member of the corporation on January 30,2006, by contributing 15,000,000 KRW (about 15.8% of the total investment at the time of establishment) and was registered as one of the four directors of the corporation until the date of the incident, February 4,2015. However, the corporation had never held a board meeting or distributed profits to its members since its establishment. c. The duties at the poultry farm were roughly divided into egg related tasks, such as daily collection and sorting of eggs for shipment, and manure related tasks, where manure was collected, turned into compost, and then packed for shipment. Typically, four people worked at the farm; two handled the egg duties, and the other two handled the compost duties. During the busy autumn season, three additional male day laborers were temporarily hired to assist with the compost duties. d. Party A had been working at the poultry farm since the '○○ Farm' days and continued until the incident, mainly handling the compost duties and occasionally repairing broken machinery. Typically, Party A started work at 08:00 and finished at 18:00, sometimes extending to 19:00 or 20:00, while the other three employees started at 09:00 and finished at 17:00 or 18:00. e. The corporation officially commenced business on October 20,2007, and around that time, it registered Party A and others as regular employees with the Korea National Pension Service, the Korea National Health Insurance Service, and the defendant Worker's Compensation & Welfare Service, completing the subscription to four major insurances, and continued to pay the social insurance premiums for the plaintiff until the incident happened. f. There is no indication that the plaintiff purchased supplies or work tools at his own expense or subcontracted the work to third parties. g. Financial management and significant decisions regarding good shipment at the business site were made by the plaintiff's father, Nonparty 1, while daily work instructions for the four employees were typically given by the plaintiff's mother, Nonparty 4. The corporation did not draft an official employment contract nor establish employment or service regulations, but it did calculate specific net amounts for the three employees, including fixed monthly salaries plus overtime pay, performance bonuses, and vehicle maintenance expenses, after deducting four major insurance premiums and income tax, and transferred these amounts to their bank accounts. 2. Court Judgment a. Under the Industrial Accident Compensation Insurance Act, "employee" refers to an employee as defined by the Labor Standards Act (Article 5(2) main text). Furthermore, even if someone holds a position as a director or auditor of a company or corporation, if the title is only nominal or formal and in reality, they report to work daily and exercise executive authority, or work under the supervision and direction of the representative director or employer, providing labor in return for compensation, or handle tasks delegated by the company while working under the supervision and direction of the representative director or similar authority and are compensated for these tasks, such an executive qualifies as an employee under the Labor Standards Act. b. The monthly salary paid to Party A appears to be at or around the average or median income level for wage employees in our country, and the differences in monthly salary among Party A, Nonparty 2, and Nonparty 3 are not significant. Considering that Party A usually worked longer hours than the other two, and the compost duties involve more physically demanding labor than the egg duties, and given that Party A, being 17 to 25 years younger, likely provided labor of higher quality and intensity, it is difficult to conclude that the monthly salary paid to Party A, being relatively higher, includes business income (profit sharing). c. Party A worked at the corporation's compost related operations, bound by fixed working hours and locations, and never owned supplies or hired third parties to perform his duties. He received a consistent salary regardless of the corporation's performance, and further, the employer completed necessary notifications for establishing insurance relations concerning the four major social insurances for the plaintiff and continuously paid these insurance premiums up to the date of the incident. Therefore, there is substantial reason to believe that Party A, working under the supervision and direction of the representative director, Nonparty 1, provided labor with the intent of earning wages and thus qualifies as an employee under the Labor Standards Act. |
|||||
| Download : 대법 2017두46899.pdf | |||||
|
<<
< 1 >
>>
|
Table of Contents