대법원 판례의 위장도급 유형 판단기준

The regulation of agency labor is currently high on the legal and political agenda both as a result of the status report on its extreme insecurity and also due to the Supreme Court's recent decisions concerned. Specially, the Supreme Court's decisions became a catalyst for the various and useful discussions and also showed two directions to find the right course for improving the fascinating poor status of temporary agency workers. One is that the decisions presented a practical criteria for judging between genuine subcontract and sham subcontract, the other is that the decisions brought forward a helpful criteria for distinguishing the implied contract of employment from the illegal dispatch employment. The criteria is composed of four tests which are ① subcontractor's right to implement personnel, ② subcontractor's right to control personnel, ③ subcontractor's right to decide working conditions, ④ subcontractor's management independence. If a subcontractor lacks all of the four elements above, it has no legal entity which leads to the conclusion that there is a implied contract of employment between the contractor and the subcontractor's employees. If a subcontractor satisfies just a part of the four elements, it is considered as a illegal dispatch enterprise regardless of its sham contract for work. But a question remains whether this criteria will manage to solve every kinds of cases with a more sophisticated arranging system, which is an urgent problem for all of us.