[Plaintiff, Appellant] Seoul-Gyeonggi Port Transport Workers' Union (Litigation representative: Citizen General Law Office, Attorneys Yoon Jong-hyun and 5 others)
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for Defendant] Gyeonggi Chemical Industry Co., Ltd. (Litigation representative: Attorneys Lee Jae-hoo and 2 others)
[Judgment Below] Seoul High Court Judgment 96Gu42750, dated November 13, 1997
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning] The grounds of appeal are examined.
1. As to Grounds 1 and 2
As argued in the grounds of appeal, an "employee" under the Labor Standards Act (근로기준법) refers to a person who provides labor in a subordinate relationship for the purpose of earning wages. However, in order for a person who is employed by an original employer but works at a third party's place of business and performs the third party's duties to be recognized as an employee of that third party, the original employer must lack independence as an employer, or must lack such independence that it can be regarded as identical to the third party's labor-dispatching agency, such that its existence is merely formal and nominal; the employee concerned must, in fact, be in a subordinate relationship with the third party; the party actually paying the wages must, in substance, be the third party; and the counterpart receiving the labor must also be the third party, such that it can be evaluated that an implied employment contract relationship has been established between the employee concerned and the third party (see Supreme Court Order 99Ma628, dated July 12, 1999).
Examining the reasoning of the judgment below in light of the above legal principles and the record, the court below, after comprehensively considering the evidence cited in its judgment and finding the facts as stated therein concerning the employment relationship between the Intervenor for Defendant company (hereinafter "Intervenor Company") and the non-parties referred to in the judgment below, determined that the non-parties were not employees of Intervenor Company and that Intervenor Company did not succeed to the employment relationship of the service company's employees. This determination is acceptable, and there is no error in violating the rules of evidence or in misapprehending the facts in violation of the empirical rules, nor is there any error of misapprehension of the legal principles concerning the establishment of an implied employment relationship or succession to an employment relationship. Furthermore, the above determination by the court below should be deemed to include the rejection of the argument that Heungil Development, the service company, was merely a nominal employer in form, and therefore there is no error of omission of judgment. The grounds of appeal on this point cannot be accepted.
2. As to Ground 3
As lawfully established in the reasoning of the judgment below, since the non-parties referred to in the judgment below cannot be regarded as employees of Intervenor Company, there is no room for an unfair labor practice to be established with respect to them. The determination of the court below to the same effect is justified, and there is no error in violating the rules of evidence, violating the empirical rules, or misapprehending the legal principles concerning unfair labor practices. The grounds of appeal on this point also cannot be accepted.
3. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiff, the appellant. This judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.
Presiding Justice Cho Mu-je
Justice Kim Hyung-seon
Justice Lee Yong-hoon (Reporting Justice)