위장도급을 둘러싼 일본 노동법의 대응 ― 파나소닉 PDP 판결에 대한 일련의 평석들을 중심으로 ―

Recent decision by Japanese Supreme Court(Saikousaibansho) on the Panasonic Plasma Display case concluded that illegal temporary agency work could still be regulated under the frame of “Act for Securing the Proper Operation of Worker Dispatching Undertakings and Improved Working Conditions for Dispatched Workers(ADW, hakenho)”. There have been plenty of case studies and debates concerning this case. One of main issues of these debates is the question, “Can court formulate constructive intention of employer who does not want to employ an employee and force them to be under the relation of contract?”There can be two ways of understanding this question. First, to take teleological way of interpretation the clause of ADW, which can be a better way to protect employee from the view of security of employment. The other way is to be faithful to traditional way of legal interpretation, which will not easily permit formulation of employment contract that was not clearly contracted. Only with implications of employment contact, though there could be some good reasons to support needs for formation of employment contract, Japanese Supreme Court still seem to be reluctant to admit those needs. Many employment law scholars participated in this debate, and following the stream of this debate shows contemporary status of Japanese Academia of Labor and Employment law, which this article is mainly focused on. Japanese Supreme Court held the view of focusing on the expressions of employee and sub contractor, also of centering the lack of agreement on the employment contract of employee and contractor. This shows that the attempt of teleological interpretation about the agreement of employment contract between contractor and employee would not be easy, consequently new regulation to presume employment contract between them through legislation could be a proper solution.