勞動法上 使用者 地位에 관한 小考

The identity of labor Law is to protect working conditions and to guarantee fundamental labor rights, which gives rights to employees and imposes duties to employers. But as industrial society is developed and hence diversification of corporate organization and employment types has been spread, labor law based upon the definition of employer which is confined to one party of employment contract cannot take the appropriate role indicated above. Therefore case law and scholars have tried to extend the scope of employers continuously. The court introduced so called 'implicit employment theory' and recently extended the scope of employers on the basis of the power of dominance and decision to working conditions with respect to unfair labor practice. Scholars propose that based upon the power of dominance and decision the scope of employers must be widened particularly in the area of collective labor relationship. The court extended the scope of employers on the basis of power of dominance and decision but does not impose the duty of collective bargaining on the employers. Such attitude of the court has contradiction. Therefore I think that it must extend the scope of employers consistently according to the 'dominance power scrutiny' or if it must extend the scope of persons who can be liable for the unfair labor practice through accomplice theory. And the distinction between temporary agency employment and outsourcing has been more important responding to increasing so called indirect employment since economic crisis caused by foreign currency in Korea. Recently the court decided illegal temporary agency employment in the case of Hyundai Automobile Corporation. It emphasized that the power of direction to the employees of subcontractors lied on Hyundai and the subcontractors did not put any its own technology or capital, thus it decided that Hyundai actually practiced illegal temporary agency employment. The scrutiny of the government for such distinction uses traditional criteria of independence of management and independence of business and personnel management. The both independences are not reciprocally exclusive but closely related each other. The case of Hyundai and the German cases also take this kind of interpretation method theory, so the scrutiny of the government needs to be revised. But It needs more research to achieve a systematic and consistent theory for extention of the scope of employers.