도급과 파견의 구별에 관한 최근 판결의 동향과 쟁점 — 대상판결: 서울고등법원 2017.2.10. 선고 2014나49625 등(병합) — (The trend and issues of the recent case on distinction between subcontract and dispatched labor – the object of case: Seoul High Court 2017.2.10. pronouncement 2014 NA 49625 etc(Combination) –)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 40권 / 113 ~ 148페이지
· 저자명 : 이달휴

초록

The court of this case denied the labor of subcontract and acknowledged the illegal dispatched labor to the indirect processes in the motor industry. irrespective of the use of word: subcontract. If there is the order or direction of user-employer to the workers, the labor belongs to the dispatched labor from viewpoint of employee dispatching or the Protection of Dispatched-Employee Act(hereafter the ‘PDEA’). So, user-employer has the duty to hire the dispatched workers. If user-employer doesn’t hire them, they have the right to ask for the verdict in substitution for the user-employer expression of will. So that verdict is found in the court, an employment relation between user-employer and dispatched workers is established.
Two problems is proposed on this case: First, for it is difficult to distinguish the order or direction of user-employer’s from that of the contractor, the problem with contract for dispatched labor or contract for any construction work. If the company that dispatchs the workers independently exists and user-employer don’t directly order the workers but contractor. the legal relation between user-employer and workers is that of subcontract. That is to avoid the judgement based on the element of dependent labor relation.
Second, PDEA has the clause that user-employer should directly hire the dispatched workers in case of illegal dispatched labor. the court made an interpretation of this clause as concluding employment contract.
I don’t agree court’s understanding of this clause. This clause is the meaning that user-employer has just obligation to hire the dispatched worker, because the administrative fine for negligence is imposed on him in case of the user- employer’s violation of the clause.

영어초록

The court of this case denied the labor of subcontract and acknowledged the illegal dispatched labor to the indirect processes in the motor industry. irrespective of the use of word: subcontract. If there is the order or direction of user-employer to the workers, the labor belongs to the dispatched labor from viewpoint of employee dispatching or the Protection of Dispatched-Employee Act(hereafter the ‘PDEA’). So, user-employer has the duty to hire the dispatched workers. If user-employer doesn’t hire them, they have the right to ask for the verdict in substitution for the user-employer expression of will. So that verdict is found in the court, an employment relation between user-employer and dispatched workers is established.
Two problems is proposed on this case: First, for it is difficult to distinguish the order or direction of user-employer’s from that of the contractor, the problem with contract for dispatched labor or contract for any construction work. If the company that dispatchs the workers independently exists and user-employer don’t directly order the workers but contractor. the legal relation between user-employer and workers is that of subcontract. That is to avoid the judgement based on the element of dependent labor relation.
Second, PDEA has the clause that user-employer should directly hire the dispatched workers in case of illegal dispatched labor. the court made an interpretation of this clause as concluding employment contract.
I don’t agree court’s understanding of this clause. This clause is the meaning that user-employer has just obligation to hire the dispatched worker, because the administrative fine for negligence is imposed on him in case of the user- employer’s violation of the clause.

참고자료

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