파견관계 판단기준의 재정립 (Re-establishment of Criteria for Determining Dispatched Employment Relationships)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 90호 / 27 ~ 69페이지
· 저자명 : 정현주

초록

The criteria for judging whether the substance of the contractual relationship with the original subcontractor falls under Article 2, Subparagraph 1 of the Dispatched Worker Act are not separately defined in the law, but in accordance with the five criteria set forth in the 2015 Supreme Court decision. However, when examining individual litigation cases, different interpretations and conclusions are often made on the same or similar factual relationships, and it is evaluated that legal stability is low.
The basic duty of labor law is to realize social justice through the protection of workers' physical and mental freedom and personality. Considering this point, indirect employment methods that cause polarization of working conditions and job instability should be allowed on a limited basis. In particular, as in Korea, in a situation of contract inequality that can affect the subcontractor's corporate continuity from the economic superiority of the prime contractor, if the indirect employment method is widely recognized, the prime contractor hands over the responsibility for the workers who need to be hired directly to the subcontractor who is at a socioeconomic disadvantage. It is the same as refusing to The criterion for determining the dispatch relationship needs to be interpreted in a way that broadly acknowledges the employer's responsibility from the perspective of protecting the right to work through the principle of direct employment.
As a result of reviewing the 22 judgments handed down after 2015, it was the same in most cases that there was a factual relationship that was seen as command and order, but whether the dispatch relationship was recognized differed depending on how the judge evaluated the factual relationship. Looking at the characteristics of court decisions, the judgment results and the judgment results of each individual judgment element were all the same. Since the five criteria were concluded in an All or Nothing method, it was difficult to see that the study properly approached the search for the substance of legal relationships. In addition, since the same factual relationship becomes the basis for judgment in several judgment standards, it is necessary to elaborately reorganize so that the purpose to be judged and the factual relationship to be reviewed can correspond.
As a concrete reorganization plan, it is reasonable to exclude 《Judgment Criterion ③ Subcontractor’s independent personnel rights》 and 《Judgment Criterion ⑤ Subcontractor’s independence in business management》 from among the current dispatch relationship criteria. 《Judgment Criterion ① Substantial command/order from the prime contractor》, 《Judgment Criterion ② Substantial incorporation into the prime contractor’s project》 and 《Judgment Criterion ④ Definitiveness/ distinctness of contract work, Expertise/Technology》 should be direct and indirect criteria. Accordingly, if we redefine the criteria for determining the dispatch relationship, “The standard for determining whether or not it falls under Article 2, Subparagraph 1 of the Dispatched Worker Act is not bound by the name or form of the contract attached by the parties (substantive judgment), and the third party It is necessary to comprehensively examine and judge whether significant directives and orders are given, such as directly or indirectly binding instructions on the performance of duties to workers (key judgment factor). At this time, if the contents and scope of the contract concluded between the parties are not determined in advance or if it is to be performed in connection with other duties of a third party, the existence of command and order by a third party can be presumed (element of presumption of command and order).”

영어초록

The criteria for judging whether the substance of the contractual relationship with the original subcontractor falls under Article 2, Subparagraph 1 of the Dispatched Worker Act are not separately defined in the law, but in accordance with the five criteria set forth in the 2015 Supreme Court decision. However, when examining individual litigation cases, different interpretations and conclusions are often made on the same or similar factual relationships, and it is evaluated that legal stability is low.
The basic duty of labor law is to realize social justice through the protection of workers' physical and mental freedom and personality. Considering this point, indirect employment methods that cause polarization of working conditions and job instability should be allowed on a limited basis. In particular, as in Korea, in a situation of contract inequality that can affect the subcontractor's corporate continuity from the economic superiority of the prime contractor, if the indirect employment method is widely recognized, the prime contractor hands over the responsibility for the workers who need to be hired directly to the subcontractor who is at a socioeconomic disadvantage. It is the same as refusing to The criterion for determining the dispatch relationship needs to be interpreted in a way that broadly acknowledges the employer's responsibility from the perspective of protecting the right to work through the principle of direct employment.
As a result of reviewing the 22 judgments handed down after 2015, it was the same in most cases that there was a factual relationship that was seen as command and order, but whether the dispatch relationship was recognized differed depending on how the judge evaluated the factual relationship. Looking at the characteristics of court decisions, the judgment results and the judgment results of each individual judgment element were all the same. Since the five criteria were concluded in an All or Nothing method, it was difficult to see that the study properly approached the search for the substance of legal relationships. In addition, since the same factual relationship becomes the basis for judgment in several judgment standards, it is necessary to elaborately reorganize so that the purpose to be judged and the factual relationship to be reviewed can correspond.
As a concrete reorganization plan, it is reasonable to exclude 《Judgment Criterion ③ Subcontractor’s independent personnel rights》 and 《Judgment Criterion ⑤ Subcontractor’s independence in business management》 from among the current dispatch relationship criteria. 《Judgment Criterion ① Substantial command/order from the prime contractor》, 《Judgment Criterion ② Substantial incorporation into the prime contractor’s project》 and 《Judgment Criterion ④ Definitiveness/ distinctness of contract work, Expertise/Technology》 should be direct and indirect criteria. Accordingly, if we redefine the criteria for determining the dispatch relationship, “The standard for determining whether or not it falls under Article 2, Subparagraph 1 of the Dispatched Worker Act is not bound by the name or form of the contract attached by the parties (substantive judgment), and the third party It is necessary to comprehensively examine and judge whether significant directives and orders are given, such as directly or indirectly binding instructions on the performance of duties to workers (key judgment factor). At this time, if the contents and scope of the contract concluded between the parties are not determined in advance or if it is to be performed in connection with other duties of a third party, the existence of command and order by a third party can be presumed (element of presumption of command and order).”

참고자료

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