지입차주 겸 운전기사 판결 비교를 통한 근로자 개념의 재검토 - 야구장모형 시론 - (Review of Employee concept through a Comparison of the Supreme Court decision with driver of Owner-operators)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 12호 / 73 ~ 121페이지
· 저자명 : 구건서

초록

The drivers of owner-operators which owned by themselves have the double status of the owner-operator and the driver. They seem self-employee or employed worker depending on the concrete actual relation. Regarding these driver of owneroperators who have the double status, there exist wide variety of views from interpretation of the laws to legislative policy to consider them as employee workers would be protected by labor law admit to employee concept, or as own business operators would be applied general civil law. Some of drivers of owner-operators may stand in the equal or prominent position in relation to business transactions, but most of them might be in the weak position, possess one car purchased by installments or debt and sell their own labor for living. Therefore, in terms of social fairness, it is advisable to interpret positively whether driver of owner-operators is recognized as employee or not. Since there exist various forms of owner-operators, it is difficult to solve legal disputes by simple interpretation of the employee concept. As a result, need of separate legislation is raised for special types of employee workers as well as drivers of owner-operators.
Current law in force regarding the employee concept have issues both in legislation or interpretation. From the point of legislation, Merkmale presented by definition of employee concept provision in the current positive laws (The Labor Standards Act Article 2-1, The Labor Union Act Article 2-1) is not consistent with the results considering the relevance of legal effect and meaning so that it is hard to be utilized for the judgement criteria of employee concept. In the view of interpretation, precedents of employee concept judged by tangible approach and listed the factual evidences parallel to check the relationship of employer-employee only, order relation or dominance relation can't be determined, with the results that legal stability is profoundly violated because of absence of predictability and high risk of court's intervention. Also, based on the judgement of the Supreme Court ruling "use dependency" strictly, criteria's meet more than 51% of employee and less than 49% of self-employment could be protected as employee worker, however, extremely relevant to criteria's meet 49% of employee and more than 51% of selfemployment has no protection. Supreme Court's interpretation by comprehensive judgement focused on "use dependency" excludes special type of employee workers stated in the middle of gray zone from the protection of the labor laws who are practically workers but formed in workers in special types of employment.
Considering the given environment expanding diversity of means of working and type of utilizing labors, rather than dichotomous way of logic such as 'employee or employer' or 'all or nothing', solution should be found how to protect self-employee or self labor provider who looks like owner operator but actually provides own labor for compensation. Among them, many of underprivileged are living by selling their own labors. While labour supply in a variety of forms to determine by single frame named use dependency is difficult and using all of the approaches including the ontological approach, teleological approach and the positive law approach, to clarify the employee concept is probably impossible? Because technology and society are evolving rapidly, creating new forms of labor supply, and the increase of remote working and flexible working and of course with the help of smart devices instruction is not directed at their own processes autonomously, the type of smart work supply is widely spread. Even so, since the labor law is a last safety valve in capitalist society ensuring human life for people who take the lives by providing their labor, the employee concept to protect workers is somehow bound to define.
Since employee concept is the entrance and exit of the labor law, interpretation and legislation should be faithfully directed to protect the labor providers, who are socially disadvantaged. If one of purpose of the labor law is to restore substantial liberty for people who 'provide labors for others' not for people who 'work for themselves', it is not advisable to exclude the drivers of owner-operators from the scope protected by the labor laws because of the points that they formally possess vehicles and choose the type of civil law contracts. Practically, the drivers of owneroperators belong to dependent and subordinated labors. However, not all of labor supply relations have dependency relations, there's no reason to prevent to select contracts in type of civil laws for outsourcing or mandating between labor suppliers and recipients. In this case, the parties freely decide in the comparable relationship and its autonomy of the affairs should be respected. Adhering to the ideology of labor law to protect social underprivileged, consideration to imposing restrictions on economic activities is needed.
According to the interpretation of the current law in force, the drivers of owner-operators are living on their income such as wages and salaries and they are applicable to the employees who remain to exert the three rights of labor in constitution. In addition, if use dependency concept (employee-employer concept) is strong, it is also possible to interpret as employee by the labor standard act.
However, the most of the Supreme Court judged practically to refuse the employee concept for the special type of employee workers as well as the drivers of owneroperators.
Therefore, it's required to legislate a law for the people in between own business operators and employees. In case of legislation, either way is possible to extend the employee concept of the current labor related laws to the special type of employee workers or to legislate a special law in separate to enact the part of labor related laws. It is, however, recommended that legislating of special law enacting a part of the labor law to set the range of protection rather than appling entire provision of labor laws for the special type of employee workers since they are recognized as employee concept as well as they are characterized by the employer concept in partial.

영어초록

The drivers of owner-operators which owned by themselves have the double status of the owner-operator and the driver. They seem self-employee or employed worker depending on the concrete actual relation. Regarding these driver of owneroperators who have the double status, there exist wide variety of views from interpretation of the laws to legislative policy to consider them as employee workers would be protected by labor law admit to employee concept, or as own business operators would be applied general civil law. Some of drivers of owner-operators may stand in the equal or prominent position in relation to business transactions, but most of them might be in the weak position, possess one car purchased by installments or debt and sell their own labor for living. Therefore, in terms of social fairness, it is advisable to interpret positively whether driver of owner-operators is recognized as employee or not. Since there exist various forms of owner-operators, it is difficult to solve legal disputes by simple interpretation of the employee concept. As a result, need of separate legislation is raised for special types of employee workers as well as drivers of owner-operators.
Current law in force regarding the employee concept have issues both in legislation or interpretation. From the point of legislation, Merkmale presented by definition of employee concept provision in the current positive laws (The Labor Standards Act Article 2-1, The Labor Union Act Article 2-1) is not consistent with the results considering the relevance of legal effect and meaning so that it is hard to be utilized for the judgement criteria of employee concept. In the view of interpretation, precedents of employee concept judged by tangible approach and listed the factual evidences parallel to check the relationship of employer-employee only, order relation or dominance relation can't be determined, with the results that legal stability is profoundly violated because of absence of predictability and high risk of court's intervention. Also, based on the judgement of the Supreme Court ruling "use dependency" strictly, criteria's meet more than 51% of employee and less than 49% of self-employment could be protected as employee worker, however, extremely relevant to criteria's meet 49% of employee and more than 51% of selfemployment has no protection. Supreme Court's interpretation by comprehensive judgement focused on "use dependency" excludes special type of employee workers stated in the middle of gray zone from the protection of the labor laws who are practically workers but formed in workers in special types of employment.
Considering the given environment expanding diversity of means of working and type of utilizing labors, rather than dichotomous way of logic such as 'employee or employer' or 'all or nothing', solution should be found how to protect self-employee or self labor provider who looks like owner operator but actually provides own labor for compensation. Among them, many of underprivileged are living by selling their own labors. While labour supply in a variety of forms to determine by single frame named use dependency is difficult and using all of the approaches including the ontological approach, teleological approach and the positive law approach, to clarify the employee concept is probably impossible? Because technology and society are evolving rapidly, creating new forms of labor supply, and the increase of remote working and flexible working and of course with the help of smart devices instruction is not directed at their own processes autonomously, the type of smart work supply is widely spread. Even so, since the labor law is a last safety valve in capitalist society ensuring human life for people who take the lives by providing their labor, the employee concept to protect workers is somehow bound to define.
Since employee concept is the entrance and exit of the labor law, interpretation and legislation should be faithfully directed to protect the labor providers, who are socially disadvantaged. If one of purpose of the labor law is to restore substantial liberty for people who 'provide labors for others' not for people who 'work for themselves', it is not advisable to exclude the drivers of owner-operators from the scope protected by the labor laws because of the points that they formally possess vehicles and choose the type of civil law contracts. Practically, the drivers of owneroperators belong to dependent and subordinated labors. However, not all of labor supply relations have dependency relations, there's no reason to prevent to select contracts in type of civil laws for outsourcing or mandating between labor suppliers and recipients. In this case, the parties freely decide in the comparable relationship and its autonomy of the affairs should be respected. Adhering to the ideology of labor law to protect social underprivileged, consideration to imposing restrictions on economic activities is needed.
According to the interpretation of the current law in force, the drivers of owner-operators are living on their income such as wages and salaries and they are applicable to the employees who remain to exert the three rights of labor in constitution. In addition, if use dependency concept (employee-employer concept) is strong, it is also possible to interpret as employee by the labor standard act.
However, the most of the Supreme Court judged practically to refuse the employee concept for the special type of employee workers as well as the drivers of owneroperators.
Therefore, it's required to legislate a law for the people in between own business operators and employees. In case of legislation, either way is possible to extend the employee concept of the current labor related laws to the special type of employee workers or to legislate a special law in separate to enact the part of labor related laws. It is, however, recommended that legislating of special law enacting a part of the labor law to set the range of protection rather than appling entire provision of labor laws for the special type of employee workers since they are recognized as employee concept as well as they are characterized by the employer concept in partial.

참고자료

· 없음