법인등기임원의 근로자성 판단기준

Abstract

The criterion to determine the characteristics of corporate director as employee is considerable instruction and supervision from top mangement without relation to the registration or legal aspects. In case of A-Chang Construction Co., Rigional Labor Relations Commission, Central Labor Relations Commission and the Court of Appeal denied the characteristics of employee of the partners, whereas the Court of Administration admitted the characteristics. The important point of this case is whether there is considerable instruction and supervision from top management or not. The Court of Appeal denied the characteristics of employee, because the partner has vast and final authority concerning personal, general and legal affairs. In cases of B-Eight Co. and C-Stream Co., the important point is also whether the partner has practical discretion or he is under considerable instruction and supervision from employer. Meanwhile economic favor from company to partner such as company’s credit card, transportation entertainment and official role of him to participate general meeting and board of directors are not crucial points to determinate the characteristics of employee of the partners. The benefit of social security services of partners such as earned income tax and official insurance is secondary factor to determine the characteristics of director as employee. Labor Relations Commission and Supreme Court don’t consider registered director as employee, but consider corporate officer(non-registered director) as employee. However this principle gives troublesome burden to the management in the business circles, because the corporate officers implement the same function as registered directors in practice after introduction of outside director system in Korea. Corporate officers have special privilege as executive management and also receive legal protection as labor, whereby company should take serious financial burden. It is also one of problems, that company cannot change the corporate officers who have different opinion about management policy. The officers could not meet market situation promptly. The standpoints of Supreme Court and Labor Relations Commission to acknowledge corporate officers as employee should be reviewed in the korean special business situation.