Section 1: Parties and Need for Remedy
Chapter 3: Entity Eligible for Remedy and Need for Remedy, etc.
3. Exceptional Recognition of Need for Remedy
3.4 Recognition of Need for Remedy For the Employer to Be Exempted from Obligation under Public Law
| Supreme Court Decision on April 29, 1994, Case 93nu16680 | |||||
| * Plaintiff, Appellee: Kim ○○
* Defendant, Appellant: Chairman of the Central Labor Commission 1. Facts: a. On November 12, 1990, the plaintiff entered into a performance contract with the other party, under which the latter began performing as a singer at the cabaret (hereinafter referred to as the plaintiff's establishment) operated by the plaintiff. b. The plaintiff determined only the performance times and remuneration for the other party, while song selection and singing were decided in consultation with the band, without the plaintiff's involvement. The other party performed two 30minute sets each day from 19:30 to 20:00 and from 21:30 to 22:00, receiving a daily pay of 30,000 won. The plaintiff managed the establishment, treating the band members and singers (including the other party) as freelancers under a contract relationship, withholding and paying business income tax. However, 24 other staff members, such as the chef, cleaner, and lighting technician, were treated as employees, with income tax withheld and paid on their wages. 2. Court Judgment: a. Even if the workplace closed after the labor committee's remedial order, which recognized the dismissal by the employer as unfair and mandated the reinstatement of the dismissed worker with payment of equivalent wages for the dismissal period, the obligation to pay the equivalent wage amount does not retroactively disappear for the period from the day after the dismissal until the closure of the workplace, when reinstatement could have been carried out. Therefore, the employer remains obligated under public law to comply with the labor committee's decision, including the order to pay the equivalent wage amount. Consequently, there is legal interest in seeking the cancellation of this review judgment to avoid this obligation. b. Whether one qualifies as an employee under the Labor Standards Act depends on whether the labor involves a subordinate relationship with the employer and the provision of labor, rather than the formalities of the contract, such as employment contracts or contracts for work. However, if the facts as acknowledged by the lower court are correct, it cannot be recognized that the other party was under specific and direct direction and supervision by the plaintiff in their performance or work content. Merely performing at the plaintiff's establishment does not imply spatial restriction, nor does it appear that the other party was under temporal restriction by the plaintiff outside the performance times. Additionally, since the plaintiff withheld and paid business income tax, not wage income tax on the other party's income, the remuneration paid to the other party cannot be considered wages for labor. Considering all these circumstances, it cannot be said that the other party provided labor under a subordinate relationship; thus, the other party cannot be considered an employee as defined by the Labor Standards Act. |
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