구성원(파트너) 변호사ㆍ변리사의 근로기준법상 근로자성 ― 서울행정법원 2024. 5. 23. 선고 2022구합82813 판결, 서울행정법원 2024. 6. 20. 선고 2022구합77330 판결을 중심으로 ―

The Supreme Court takes the way to consider signs of personality as a laborer synthetically when judging whether a worker is a laborer under the Labor Standards Act. The above signs that work as criteria to judge whether a worker is a laborer are largely distinguished into sings of dependency and signs of personality as an independent business operator. Since each sign is not a requirement which forms the essence of a certain concept, but a judgment factor which should be considered together in determining the coverage scope of normative judgment, sings which are in priority considered vary from case to case according to specific forms of labor provisions subject to judgment. Meanwhile, when looking at recent lower court cases in which whether a partner attorney at law or patent law is a laborer under the Labor Standards Act was an issue, courts took an established legal principle in judging, but mainly focused on signs of dependency, not on signs of personality as an independent business operator that much. In light of the fact that a partner attorney at law or patent law is a main agent of managing a corporation which is composed of certificated experts and executive in most cases, he(she) is usually able to receive additional remuneration depending on performance according to his(her) ability, etc., though he(she) receives basic salary, and he(she) is able to do lecturing, working as a legal advisor, participating in a committee, while an associate is constrained in doing such activities, there is room for evaluation that a partner is able to do independent business, advertisement, consumer contact with professional competence and economic capacity in market. It also can be evaluated that a partner has an independent opportunity on profit and loss since he(she) becomes a subject of attribution on profit and loss by receiving remuneration from lecture, legal advisor activities, though specific distribution ratio could be different for partner each depending on how to decide distribution ratio with the corporation where he(she) belongs to. Also, even though a partner attorney at law or patent law receives a fixed monthly salary, the amount of remuneration he(she) receives in the end could be in flux, if he(she) receives dividend or shares expenses in accordance with business performance of corporation. This can be said to be a situation which shows that the nature of remuneration the partner receives does not have only the nature of price of labor provision. In sight of these points, a partner attorney at law or patent law can be evaluated to have personality of an independent business operator quite a bit. Having signs of personality as an independent business operator dose not immediately deny the personality of laborer, but should be considered synthetically with the relation with other signs and the degree to which other factors are satisfied altogether, of course. It, however, seems hard to say that it is a balanced judgment to come to a conclusion without having a hearing whether a worker subject to judgment satisfies signs of personality as an independent business operator. The aforementioned recent adjudications would face the following criticism that they are disproportionate in that courts came to the conclusion, taking signs of dependency in the main, not considering the signs of personality as an independent business operator which cannot help being considered in the light of essence of partner and the type of labor provision.