간접고용과 근로자의 보호 - 시민법적 계약형식과 노동법적 이념의 갈등 -

Nowadays, the korean capitalism is running around completely out of control under the new liberalized “business friendly government,” It is rampant in our society the strong to try to shift his/her responsibility to the weak. The employers are concerned about maximizing profit by minimizing his/her legal responsibility for employees as the week. The labor law is a kind of legal articulation of the employer’s social responsibility as the social strong to employee as the social week in the modern capitalistic society. The indirect employment is a legal style of business management for a corporation to shift its responsibility to the other by using the sub-contracts regulated with the civil contract law principle. In other words, employer is avoiding its responsibility for the employee imposed by the labor law. In this article the topic of legal protection of subcontracted worker is discussed with considering the conflict between the main spirit of labor law and the formality of civil contract law from a critical point of view. The legalization of indirect employment is implying a surreptitious remodification of labor law by interposing the second employer in the relations between original employer and worker by dint of using the principle of freedom of contract in the civil law. Talking broadly, it might be said that the legal permission of indirect employment means killing the spirit of labor law with the revival of freedom of contract, while the labor legislation in the late 19th century decision signified a modification to the freedom of contract principles of the civil law for worker’s social protection.