특수고용직의 노동법적 보호로자 판단방식의 변화를 중심으로

Legal Protection of ‘Economically Dependent Workers’ in Labor LawSeong-Tae KangEconomically dependent workers(hereinafter referred as ‘EDW’) are contractors who work by independent contract of/for service in formality but have the same or similar degree of personal or economic subordination to their ‘employers’ as normal employees. Efforts to protect EDW in labor law have made from 1990s in Korea because of rapid enlargement of EDW in labor market and their similarity to employees. This article aims to analyse an effort in case law to cover EDW under labor law instead of legislative approaches which have been taken from 2000.According the case law, EDW had been judged as the self-employed or independent contractors by application of ‘strict control test’ made by the supreme court on December 9, 1994. This test had supported in supreme court over 10 years before the supreme court changed his or her opinion concerning with the concept of employee under the Fair Labor Standards Act(hereinafter referred as ‘FLSA’) on December 7, 2006. The court applied ‘reasonable control test’ in order to determine coverage of the FLSA so that some of EDW, for example the lecturer in private academic institute, might be protected by the FLSA. This is a great change in the case law concerning the concept of employee under the FLSA. With a regard to more progress, however, the courts have to reform approaches to the concept of employee in labor law to solve EDW problems as followings; (1) The case law should change its opinion of worker under the ‘Trade Union and Labor Relations Act’ to include EDW in its coverage; (2) The courts have to compare employee with independent contractor in this area.