[Plaintiff, Appellee]
[Defendant, Appellant] Seongan Sanup Co., Ltd. (Attorney Lee Seok-seon, counsel for the defendant)
[Judgment Below] Cheongju District Court Decision 96Na1956 rendered on December 26, 1996
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Cheongju District Court.
[Reasoning]
We examine the grounds of appeal.
1. According to the reasoning of the first instance judgment as cited by the court below, the court below found as follows: the Defendant operates a business of manufacturing and selling ready-mixed concrete; Plaintiff 1, on August 1, 1990, and Plaintiff 2, on August 16, 1990, each entered into a ready-mixed concrete transportation subcontract with the Defendant for a term of one year, providing that the contract would be implicitly renewed if neither party raised an objection upon expiration of the term, and thereafter engaged in the business of transporting ready-mixed concrete manufactured by the Defendant; Plaintiff 1 terminated the transportation subcontract by mutual agreement on June 15, 1995, and Plaintiff 2 on April 8, 1995. The court below further found that: ① the Plaintiffs reported to work at designated times in accordance with the Defendant's instructions and transported ready-mixed concrete to customers designated by the Defendant using transportation equipment, including ready-mixed concrete mixer trucks, provided free of charge by the Defendant, and in giving transportation instructions to the ready-mixed concrete drivers, the Defendant adjusted the assignments so that the driver with the smallest transport volume on the previous day would have the largest volume on the following day, thereby balancing the monthly transportation fees; ② the Plaintiffs were required, in accordance with the Defendant's instructions, to respond to early shipments requiring reporting to work at approximately 5:00 a.m. and to night shipments occurring after 5:00 p.m., and could not refuse instructions for long-distance or small-volume transport, and were subject to certain sanctions if they refused; ③ except in unavoidable circumstances, substitute driving by a third party was permitted only for a certain period with the Defendant's approval, and otherwise the Plaintiffs were required to personally drive the concrete mixer trucks; ④ during the contract period, the Plaintiffs could not enter into similar contracts with third parties without the Defendant's consent; ⑤ a monthly standard transport volume was set, and even when the Plaintiffs' actual transport volume fell short of the monthly standard volume, they received, in addition to payment for the actual volume transported, a certain amount proportional to the shortfall; and ⑥ the Defendant could terminate the contract if the Plaintiffs violated the ready-mixed concrete transportation contract, or without justifiable reason failed to work three or more times per month without authorization, or violated instructions regarding early reporting to work, night shipments, standby, or dispatch assignments. Based on these findings, the court below determined, as stated in its reasoning, that the Plaintiffs were workers who provided labor in a subordinate relationship for the purpose of wages, and accordingly held that the Defendant was obligated to pay retirement allowances to the Plaintiffs.
2. However, the fact-finding and determination of the court below as set forth above are difficult to accept for the following reasons.
In determining whether a person constitutes a worker under the Labor Standards Act (근로기준법), regardless of whether the contract is, in form, an employment contract or a subcontract under the Civil Act (민법), the determination must be made based on whether, in substance, the worker provided labor to the business or workplace for the purpose of wages in a subordinate relationship to the employer. In determining whether such a subordinate relationship exists, the following factors must be comprehensively considered: whether the content of the work is determined by the employer and is subject to employment rules, service regulations, personnel regulations, etc.; whether, in the course of performing the work, the worker is subject to specific and direct supervision and direction by the employer; whether the working hours and place of work are designated by the employer and whether the worker is bound thereby; whether there is substitutability of work, such as whether the worker may employ a third party to perform the work on the worker's behalf; the ownership of equipment, raw materials, and work tools; matters relating to remuneration, such as whether the remuneration has the character of consideration for the labor itself, whether a basic or fixed wage is set, and whether income tax is withheld at source; the continuity of the labor-provision relationship and the existence and degree of exclusive affiliation with the employer; whether the worker's status as a worker is recognized under other statutes, such as social security legislation; and the economic and social conditions of both parties (see Supreme Court Decision 96Nu1795 rendered on February 14, 1997).
Examining this case, the record reveals the following: ① although the Defendant designated the volume of ready-mixed concrete to be transported and the place of transport for the drivers, including the Plaintiffs, and in doing so adjusted the order so that the driver with the smallest volume on the previous day would transport the largest volume of ready-mixed concrete the following day, this was because the Defendant had no choice but to individually assign to each driver the ready-mixed concrete and place of transport pursuant to the above transportation subcontract, and the adjustment was made by agreement at the drivers' own request in order to balance the monthly transport volume among the drivers; ② the employment rules did not apply to the Plaintiffs, and the Plaintiffs could take time off from work upon mere prior notice to the Defendant when necessary, and even if the Plaintiffs continuously failed to report to work and thus did not engage in the ready-mixed concrete transportation business, they would only suffer the disadvantage of contract termination, and were not subject to disciplinary action for absence from work; ③ although the Plaintiffs' work generally began at 8:00 a.m. and ended at 5:00 p.m., this appears to be because, under the Defendant's employment rules, the employees' starting time was 8:00 a.m. and ending time was 5:00 p.m., such that the Plaintiffs' transportation of ready-mixed concrete inevitably had to be conducted in accordance with the working hours of the employees who manufactured the ready-mixed concrete; ④ although only in unavoidable circumstances, the Plaintiffs could engage substitute drivers, and moreover, during the contract period, the Plaintiffs were prohibited only from entering into contracts with similar businesses, and were not prohibited from providing labor to other workplaces unless those workplaces engaged in a similar business; ⑤ income tax was not withheld at source for the Plaintiffs, and rather, the Plaintiffs had completed business registration and paid value-added tax, and did not receive benefits such as industrial accident insurance, medical insurance, or national pension; ⑥ the Plaintiffs bore, as part of the cost of operating the ready-mixed concrete vehicles, expenses for tires or tire puncture repairs; ⑦ the transport fees paid by the Defendant were determined not in proportion to the quality or quantity of labor provided by the Plaintiffs, but solely based on the objective result of work performance, namely the volume transported; ⑧ although the Plaintiffs, even when the monthly actual transport volume fell short of the monthly standard transport volume, received, in addition to the amount calculated by multiplying the actual transport volume by a certain unit price, an amount calculated by multiplying the shortfall by a unit price lower than that applied to the actual transport volume, this appears merely to be a measure to prevent ready-mixed concrete drivers from leaving during the off-season, given that demand for ready-mixed concrete fluctuates significantly depending on the construction market and seasons, and moreover, a fixed wage was not guaranteed in accordance with working hours; ⑨ although the ready-mixed concrete vehicles were owned by the Defendant, the Defendant did not have another person drive the vehicles assigned to the Plaintiffs even when the Plaintiffs did not report to work; and ⑩ although the Plaintiffs could not refuse the Defendant's dispatch instructions for long-distance or small-volume transport, and had to follow the Defendant's relocation instructions in the event of the establishment or expansion of the Defendant's ready-mixed concrete plants, these were merely provisions of the transportation subcontract established by the Defendant in order to reliably supply ready-mixed concrete to customers, and even if the Plaintiffs violated these provisions, such violation could only constitute grounds for contract termination, and could not be grounds for disciplinary action for violation of service order or the like.
Given these circumstances, the Plaintiffs cannot be regarded as workers under Article 14 of the former Labor Standards Act (repealed by Act No. 5305 on March 13, 1997), who provide labor to the Defendant for the purpose of wages in a relationship of employment and subordination.
Nevertheless, the court below determined, for the reasons stated in its judgment, that the Plaintiffs constituted workers under Article 14 of the former Labor Standards Act, and accordingly held that the Defendant was obligated to pay retirement allowances to the Plaintiffs. In so doing, the court below committed an illegality that affected the judgment, by misapprehending the facts in violation of the rules of evidence, or by misunderstanding the legal principles concerning the concept of a worker.
3. Accordingly, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered in accordance with the unanimous opinion of the participating Justices as set forth in the Order.
Justice Song Jin-hoon (Presiding Justice), Cheon Gyeong-song, Ji Chang-gwon (Justice in Charge), Shin Seong-taek