Open Decision Ledger · Labour & industrial accidents
Construction subcontracting, the real employer, and joint wage liability of the direct upper contractor
Supreme Court, Dec. 12, 2019, 2019Da253175 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 노무비청구의소
Official text on the National Law Information Center
Question
Who counts as a worker under the Labour Standards Act, and who is the employer that bears the duty to pay wages to such a worker, where a labour supply company sent workers to a construction site at an unregistered subcontractor's request and they performed carpentry work under his direction and orders?
Holding
The Supreme Court held that whether a person is a worker turns on the substance of the relationship, not the label of the contract: it looks to whether the person provided labour for wages in a dependent relationship with the employer, weighed across the listed economic and social conditions. Because the workers here performed carpentry work at the site under the subcontractor's direction and orders, they were in a dependent relationship with him and he was their employer. The defendant, as the direct upper contractor of that non-registered subcontractor, was therefore jointly liable with him for their wages under Article 44-2(1) of the Labour Standards Act, and the judgment below, which found otherwise, was reversed.
Points at issue, verbatim
위 근로자들의 사용자는 병이라고 보아야 하므로 갑 회사는 근로기준법 제44조의2 제1항에 따라 하수급인인 병의 직상 수급인으로서 병과 연대하여 근로자들의 임금을 지급할 책임을 지는데도, 이와 달리 본 원심판단에 법리오해 등의 잘못이 있다고 한 사례
Unofficial English translation
the employer of the above workers must be regarded as C, and therefore A Corporation bears liability to pay the wages of the workers jointly with C as C's next higher-tier contractor who had subcontracted to the subcontractor C pursuant to Article 44-2, paragraph (1) of the Labor Standards Act, yet the court below decided otherwise, thereby committing an error such as misapprehension of legal principles
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구지방법원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Daegu District Court.
Form of the test
Circumstances weighed Stated in the decision
경제적·사회적 여러 조건을 종합하여 판단하여야 한다
Unofficial English translation
must be determined by comprehensively considering various economic and social conditions
Factors
- 갑 주식회사가 을 주식회사로부터 유치원 등 신축공사 중 철근콘크리트 공사를 도급받은 후 그중 목공사의 노임공사 부분을 미등록건설업자인 병에게 하도급을 주었는데
- 인력공급업체를 운영하는 정이 병의 요청에 따라 공사 현장에 근로자들을 공급하였고
- 위 근로자들은 병의 지휘·명령을 받아 목공사 업무를 수행한 사안에서
- 위 근로자들의 사용자는 병이라고 보아야 하므로
Unofficial English translation
• After A Corporation was contracted by B Corporation to perform reinforced concrete work among the new construction of kindergartens, etc., it subcontracted the labor-only portion of the carpentry work to C, an unregistered construction business operator,
• Jeong, who operates a manpower supply company, supplied workers to the construction site at C's request, and
• in a case where the above workers performed the carpentry work under C's direction and command,
• the employer of the above workers must be regarded as C, and therefore
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2006. 12. 7. 선고 2004다29736 판결(공2007상, 104)
Unofficial English translation
Supreme Court Decision 2004Da29736 decided December 7, 2006 (Gong 2007 Sang, 104)
Decisions referred to
[1] 대법원 2006. 12. 7. 선고 2004다29736 판결(공2007상, 104), 대법원 2006. 12. 7. 선고 2006도300 판결(공2007상, 157)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the labour supply company itself set the pay and working hours and the subcontractor merely received the workers, would the dependent relationship still make the subcontractor the employer?
The judgment of the Daegu District Court, panel division, on remand will show how the dependent relationship was found on the full record. A later Supreme Court decision on when a labour supply company is the employer, or an amendment to Article 2(1)(i) and (ii) or Article 44-2(1) of the Labour Standards Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the labour supply company itself set the pay and working hours and the subcontractor merely received the workers, would the dependent relationship still make the subcontractor the employer?” vs Independent “What legal basis and scope govern the labor supplier's exercise of wage claims after advancing payment to the workers?”
The first reading asks who the employer would be if the supplier controlled pay and hours, while the independent reading asks about the supplier claim basis after advancing wages.
위 근로자들의 사용자는 병이라고 보아야 하므로 갑 회사는 근로기준법 제44조의2 제1항에 따라 하수급인인 병의 직상 수급인으로서 병과 연대하여 근로자들의 임금을 지급할 책임을 지는데도, 이와 달리 본 원심판단에 법리오해 등의 잘못이 있다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu District Court, in its judgment of 4 July 2019 (2018Na314309), held that the workers' employer was not the subcontractor but the plaintiff labour supply company. It reasoned that there was no evidence the workers had negotiated working conditions with the subcontractor, and that the plaintiff had itself investigated the days worked and the wages and paid the workers first after deducting the broking fees, and on that basis rejected the plaintiff's claim under Article 44-2(1) of the Labour Standards Act.
Supreme Court standard: The Supreme Court corrected that reading. It held that the workers performed the carpentry work under the subcontractor's direction and orders, so they provided labour to him in a dependent relationship and he was their employer; the plaintiff's advance payment of wages does not by itself make the plaintiff the employer. The court below misapprehended the law on who the employer is and, without examining what it needed to, violated the rules of logic and experience and exceeded the limits of free evaluation, so the judgment was reversed and the case remanded to the Daegu District Court, panel division.
Distinguishing conditions
- A person who supplied labour but pursued business on his own calculation, such as hiring a third party to stand in for the work, since the Court looked to whether the worker acted independently.
- A case with no second or further subcontracting in construction, because Article 44-2(1) applies where two or more subcontracts have been made.
- A subcontractor who is a construction business operator registered under the Framework Act on the Construction Industry, since the joint liability attaches to the direct upper contractor of a subcontractor who is not such an operator.
Record verification notes
Before relying on this decision, trace the chain of subcontracts and confirm that the person said to be the employer is a non-registered subcontractor and that the defendant is his direct upper contractor. Then test the real relationship across the conditions the Court listed: who set the work, working hours and place, whether the workers were bound by personnel rules, whether they bore the risk and profit, and how the pay was set. Finally, check whether the record shows the workers negotiating working conditions with that person, since the court below relied on the absence of such evidence.
From the official text
Points at issue
[1] 근로기준법상 근로자에 해당하는지 판단하는 기준 및 어떤 근로자에게 누가 근로기준법상 임금지급의무 등을 부담하는 사용자인지 판단하는 기준 [2] 갑 주식회사가 을 주식회사로부터 유치원 등 신축공사 중 철근콘크리트 공사를 도급받은 후 그중 목공사의 노임공사 부분을 미등록건설업자인 병에게 하도급을 주었는데, 인력공급업체를 운영하는 정이 병의 요청에 따라 공사 현장에 근로자들을 공급하였고, 위 근로자들은 병의 지휘·명령을 받아 목공사 업무를 수행한 사안에서, 위 근로자들의 사용자는 병이라고 보아야 하므로 갑 회사는 근로기준법 제44조의2 제1항에 따라 하수급인인 병의 직상 수급인으로서 병과 연대하여 근로자들의 임금을 지급할 책임을 지는데도, 이와 달리 본 원심판단에 법리오해 등의 잘못이 있다고 한 사례
Unofficial English translation
[1] The criteria for determining whether one falls under the category of an employee under the Labor Standards Act, and the criteria for determining who bears the employer's obligation to pay wages, etc. under the Labor Standards Act with respect to a given employee [2] A case where, after A Corporation was contracted by B Corporation to perform reinforced concrete work among the new construction of kindergartens, etc., it subcontracted the labor-only portion of the carpentry work to C, an unregistered construction business operator, Jeong, who operates a manpower supply company, supplied workers to the construction site at C's request, and the above workers performed the carpentry work under C's direction and command, the employer of the above workers must be regarded as C, and therefore A Corporation bears liability to pay the wages of the workers jointly with C as C's next higher-tier contractor who had subcontracted to the subcontractor C pursuant to Article 44-2, paragraph (1) of the Labor Standards Act, yet the court below decided otherwise, thereby committing an error such as misapprehension of legal principles
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대구지방법원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Daegu District Court.
Provisions referred to
[1] 근로기준법 제2조 제1항 제1호, 제2호 [2] 근로기준법 제2조 제1항 제1호, 제2호, 제44조의2 제1항
Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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