[Plaintiff, Appellee] National Health Insurance Service
[Defendant, Appellant]
[Judgment of the lower court] Daejeon District Court Judgment 2009Na9186, decided November 10, 2009
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning] The grounds of appeal are examined.
1. As to the first ground of appeal
Whether a person constitutes a "worker" under the Labor Standards Act (근로기준법) should be determined not by the formal type of the contract, that is, whether it is an employment contract or a service (independent contractor) contract, but by whether, in substance, the worker provided labor to the employer in a subordinate relationship, for the purpose of receiving wages, in the business or workplace concerned. In determining whether such a subordinate relationship exists, the following economic and social conditions should be comprehensively considered: whether the employer determines the content of the work and whether the person is subject to employment rules or service (personnel) regulations, and whether the employer exercises substantial direction and supervision over the performance of the work; whether the employer designates the working hours and place of work and the worker is bound thereby; whether the person providing labor can independently operate a business on his or her own account, such as by owning equipment, raw materials, or work tools, or by hiring a third party to perform the work on his or her behalf; whether the person bears the risks inherent in the labor relationship, such as the generation of profit or the occurrence of loss through the provision of labor; matters relating to remuneration, such as whether the remuneration is in the nature of consideration for the labor itself, whether a basic or fixed salary has been set, and whether income tax has been withheld at source; the continuity of the labor-providing relationship and the existence and degree of exclusive affiliation with the employer; and whether the person is recognized as having the status of a worker under statutes concerning the social security system. However, since matters such as whether a basic or fixed salary has been set, whether income tax has been withheld at source, and whether the person is recognized as a worker under the social security system are matters that the employer, using its economically superior position, has considerable latitude to determine arbitrarily, the worker status should not be easily denied merely because such circumstances are not found to exist (see Supreme Court Decision 2004Da29736, decided December 7, 2006; Supreme Court Decision 2009Da51417, decided October 29, 2009, among others).
According to the reasoning of the judgment of the lower court, the lower court, in light of the various circumstances found based on the evidence lawfully adopted, determined that it was reasonable to view Han Gi-hyeon as an employee of the Defendant, who provided labor to the Defendant in a subordinate relationship in terms of the content of the work and in terms of time and place, for the purpose of receiving a daily wage of KRW 100,000, in the new construction work of a Korean-style traditional house (hanok) villa and site leveling carried out by the Defendant. In light of the aforementioned legal principles, the above determination of the lower court is correct, and there is no error of law in misapprehending the legal principles concerning the recognition of a worker under the Labor Standards Act. Furthermore, insofar as the portion of the Defendant's grounds of appeal criticizes the judgment of the lower court by premising facts different from those found by the lower court, this is no different in purport from disputing the lower court's exclusive authority to select evidence and find facts, and thus cannot be accepted.
2. As to the second ground of appeal
With respect to medical care compensation (요양보상) under the Labor Standards Act, the employer is obligated, absent special circumstances, to pay the full amount thereof, and even if the worker was negligent, the employer cannot be exempted from paying an amount corresponding to that proportion of negligence (see Supreme Court en banc Decision 81Daka351, decided October 13, 1981; Supreme Court Decision 2008Da40847, decided November 27, 2008, among others).
In the same vein, the lower court's rejection of the Defendant's argument that the Defendant's liability should be limited to the extent of Han Gi-hyeon's own negligence is justified, and there is no error of law in misapprehending the legal principles concerning medical care compensation and comparative negligence as alleged in the grounds of appeal.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered in accordance with the Order, with the unanimous consent of the participating Justices.
Presiding Justice An Dae-hee
Justice Park Si-hwan
Justice Cha Han-seong
Justice Shin Young-cheol (Justice in charge)