특수형태근로종사자의 ‘전속성’ 판단에 대한 비판적 고찰 (A critical review of the ‘exclusiveness’ judgment of special type workers)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 31호 / 79 ~ 104페이지
· 저자명 : 방준식

초록

In the requirements for special types of workers set forth in Article 125, Paragraph 1 of the Industrial Accident Compensation Insurance Act, the exclusive criteria must be deleted or relaxed. This is because it is contradictory that a special type of worker who has already been judged to be not a worker in accordance with the Labor Standards Act because it has no exclusive property in the Supreme Court case must meet the exclusive property requirement to receive the protection of the Industrial Accident Compensation Insurance Act. Of course, unless the exclusive requirements of Article 125 (1) of the Industrial Accident Compensation Insurance Act are deleted, special types of workers who have economic dependence and need to be protected from industrial accidents will be judged differently for special types of work under the Industrial Accident Compensation Insurance Act. It is also possible to protect as a worker.
In other words, the criteria for judging exclusiveness for special types of workers are not'use dependency', which is a criterion for judging the level of workers, but to expand the scope of the Industrial Accident Compensation Insurance Act. It is intended to present a broad criterion for judgment of'incorporation into risk areas'. This is because by doing so, it is possible to secure the effectiveness of remedy from industrial accidents and to clarify who is responsible for devising effective disaster prevention measures.
In addition, labor providers who are in need of protection should be included in the protection of the Industrial Accident Compensation Insurance Act, whether they are special workers or non-private labor providers, unless they are a true self-employed person whose exclusive property is completely excluded. It is not only the purpose of the labor law to protect those who do 'labor for others' rather than 'work for themselves', but also based on the principle of 'protection where there is labor'. This is because there is a need to expand the subject of protection based on the grounds.
Finally, judicial responsibilities (parties of labor contracts) and public statutory responsibilities (industrial safety and health law/industrial accident compensation insurance law) are distinct. If you are not a contracting party, you may not be liable for judicial responsibilities, but this does not exclude public law responsibilities as well. In particular, since the Industrial Accident Compensation Insurance Act and the Occupational Safety and Health Act each protect labor providers with the disciplinary purpose of preventing and protecting industrial accidents, the scope of application should be expanded according to the purpose.

영어초록

In the requirements for special types of workers set forth in Article 125, Paragraph 1 of the Industrial Accident Compensation Insurance Act, the exclusive criteria must be deleted or relaxed. This is because it is contradictory that a special type of worker who has already been judged to be not a worker in accordance with the Labor Standards Act because it has no exclusive property in the Supreme Court case must meet the exclusive property requirement to receive the protection of the Industrial Accident Compensation Insurance Act. Of course, unless the exclusive requirements of Article 125 (1) of the Industrial Accident Compensation Insurance Act are deleted, special types of workers who have economic dependence and need to be protected from industrial accidents will be judged differently for special types of work under the Industrial Accident Compensation Insurance Act. It is also possible to protect as a worker.
In other words, the criteria for judging exclusiveness for special types of workers are not'use dependency', which is a criterion for judging the level of workers, but to expand the scope of the Industrial Accident Compensation Insurance Act. It is intended to present a broad criterion for judgment of'incorporation into risk areas'. This is because by doing so, it is possible to secure the effectiveness of remedy from industrial accidents and to clarify who is responsible for devising effective disaster prevention measures.
In addition, labor providers who are in need of protection should be included in the protection of the Industrial Accident Compensation Insurance Act, whether they are special workers or non-private labor providers, unless they are a true self-employed person whose exclusive property is completely excluded. It is not only the purpose of the labor law to protect those who do 'labor for others' rather than 'work for themselves', but also based on the principle of 'protection where there is labor'. This is because there is a need to expand the subject of protection based on the grounds.
Finally, judicial responsibilities (parties of labor contracts) and public statutory responsibilities (industrial safety and health law/industrial accident compensation insurance law) are distinct. If you are not a contracting party, you may not be liable for judicial responsibilities, but this does not exclude public law responsibilities as well. In particular, since the Industrial Accident Compensation Insurance Act and the Occupational Safety and Health Act each protect labor providers with the disciplinary purpose of preventing and protecting industrial accidents, the scope of application should be expanded according to the purpose.

참고자료

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