[Plaintiffs, Appellants] Plaintiff 1 and 2 others (Attorney Ye Sang-hae, Counsel for the plaintiffs)
[Defendant, Appellee] Samsung Fire & Marine Insurance Co., Ltd.
[Judgment Below] Incheon District Court Decision 2000Na2917 dated September 7, 2000
[Order]
All appeals are dismissed.
The costs of appeal are to be borne by the Plaintiffs.
[Reasoning]
1. Whether a person constitutes a worker under the Industrial Accident Compensation Insurance Act (산업재해보상보험법) and the Labor Standards Act (근로기준법) must be determined, regardless of whether the contract in question is, in form, an employment contract or a contract for work under the Civil Act (민법), according to whether the worker, in substance, provided labor to the employer in a subordinate relationship for the purpose of receiving wages in a business or workplace. In making this determination, the following matters must be comprehensively considered: whether the content of the work was determined by the employer, whether the worker was subject to employment rules, service regulations, personnel regulations, etc., and whether the worker was subject to specific and direct direction and supervision by the employer in the course of performing the work; whether the working hours and place of work were designated by the employer and whether the worker was bound thereby; whether the work was substitutable, such as whether the worker himself could hire a third party to perform the work in his stead; the ownership of equipment, raw materials, work tools, etc.; matters concerning remuneration, including whether the remuneration had the character of consideration for the labor itself, whether a basic or fixed salary was set, and whether income tax was withheld at source from the remuneration; the continuity of the labor-providing relationship and the existence and degree of exclusive affiliation to the employer; whether the status of worker must be recognized under other statutes, such as those concerning the social security system; and the economic and social conditions of both parties (see Supreme Court Decision 97Da56235 delivered on February 9, 1999; Supreme Court Decision 99Da58433 delivered on March 23, 2000, etc.).
2. The court below found as basic facts that Plaintiff 1 had been employed from around March 1996 as a driver of a 5-ton moving truck at a moving company called "○○ Express," operated by the non-party co-defendant at the first instance, and that on August 28, 1996, at 14:00, while performing moving work using a so-called ladder truck (Incheon, vehicle registration number omitted) as set forth in its findings, he sustained an injury; and that the Defendant company and the said non-party had entered into an automobile insurance contract under which the Defendant company agreed to compensate the said non-party in the event that the non-party became liable to compensate a third party for damage caused by an accident occurring while the ladder truck was in operation. Based on these facts, with respect to the Defendant company's argument that, under the terms of the insurance contract concluded between the Defendant company and the said non-party, in cases where an employee of the insured suffers an occupational injury and is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act, no compensation is to be paid, and that since the accident in this case constitutes an occupational injury sustained by Plaintiff 1, an employee of the insured non-party, while performing moving work, Plaintiff 1 is entitled to receive insurance benefits under the said Act, and therefore the Defendant company cannot be held liable to respond to the Plaintiffs' claim pursuant to the said terms, the court below, upon comprehensive consideration of the evidence presented, found the following: that Article 11, Paragraph 2 of the Defendant company's General Terms and Conditions for Business Automobile Insurance provides that the Defendant company shall not compensate for damage in cases where the person is an employee of the insured who bears the liability to compensate and who is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act (Item 4), or where, in cases where the insured uses the insured vehicle for the business of an employer, the person is another employee engaged in the business of that employer who is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act (Item 5); that the moving company operated by the said non-party handled not only general moves but also packing moves, for which the basic personnel requirement was four laborers and one driver, and that whenever moving work arose, the non-party would instruct the laborers, including Plaintiff 1, as to the place of work, and the laborers would move to the designated place and provide their labor using the tools and means provided by the said non-party; that due to the nature of the work, which required specialized skill to transport household goods without damaging them, the non-party did not call upon just anyone as needed but rather used almost fixed daily laborers, including Plaintiff 1; and that, in particular, Plaintiff 1 had continuously provided labor to the non-party from around March 1996, working fixedly for more than 15 days per month, although during off-peak periods when the moving company had no work and was idle, he sometimes received calls from other moving companies and went to work sites to perform work for those other companies. Based on these findings, the court below determined that, in light of the fact that Plaintiff 1 was instructed by the non-party as to the specific time and place for moving work and moved to that place to work, such that the specific working hours and place were designated by the employer; that, due to the nature of the work, Plaintiff 1 could not himself hire a third party to perform the work in his stead, and thus substitutability of the work was not recognized; that the equipment, raw materials, work tools, etc. were, in principle, all owned by the non-party, and the work was performed using these; and that, although Plaintiff 1 sometimes performed work for other moving companies during off-peak periods or when work was scarce, due to the nature of the moving company business, Plaintiff 1 had been employed by the non-party from around March 1996 and had continuously provided labor while working fixedly for more than 15 days per month, such that exclusivity of affiliation was recognized to exist—the court below found it reasonable to conclude that, taken as a whole, Plaintiff 1 was in a continuous and subordinate labor relationship with the non-party and thus constituted a worker. Accordingly, the court below determined that Plaintiff 1 constituted a worker under the Industrial Accident Compensation Insurance Act and was therefore entitled to receive accident compensation under the said Act, such that the Defendant company had no obligation to pay insurance benefits, other than liability insurance proceeds, to Plaintiff 1, an employee of the non-party.
3. Upon examining the relevant evidence in the record, the fact-finding of the court below as set forth above may be deemed justifiable, and it cannot be said that the court below found material facts without any evidence, or that there was any illegality such as a violation of the rules of evidence, insufficient deliberation, or failure to state reasons, as argued in the grounds of appeal. Furthermore, in light of the legal principles set forth above, given such factual relationship, the determination that Plaintiff 1 constitutes a worker under the Industrial Accident Compensation Insurance Act and the Labor Standards Act is likewise justifiable, and it cannot be said that there was any illegality therein, such as a violation of precedent or a misapprehension of the legal principles concerning the concept of a worker under the said Acts.
Meanwhile, the precedents cited in the grounds of appeal all concern different factual circumstances and cannot be deemed applicable to this case. Moreover, in this case, where it is recognized, viewed as a whole, that Plaintiff 1 provided labor to the said non-party in a subordinate relationship for the purpose of receiving wages in a business or workplace, it cannot be said that Plaintiff 1 is not a worker under the Industrial Accident Compensation Insurance Act and the Labor Standards Act merely because some circumstances relating to working conditions, among the various indicia of worker status, are lacking.
4. Therefore, all appeals are dismissed, and it is so decided as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Yoon Jae-sik (Presiding Justice), Song Jin-hoon, Lee Kyu-hong, Son Ji-yeol (Justice in charge)