사내하도급에서 사용자 개념의 판단법리

There are three contracting parties(contractor, subcontractor, subcontractor’s employee) in the legal relation of subcontracting that many companies are using as an main management strategy recently. Contractors make a contract with subcontractors for completion of work, subcontractors make employment contract with their employees so that the legal relation is composed. With regard to the contract law,there is no privity of the contract law existing between contractors and subcontractor’s employees. Therefore contractors have no rights to order or give directions to subcontractor’s employees, in opposition to this, contractors could not be an employer of the subcontractor’s employees and they are not responsible for subcontractor’s employees. However since the 2000s, there are many cases which contractors put subcontractor’s employees under their command so that it becomes an issue whether the contractors who are an employer of employee hired by subcontractor, could be acknowledged or not. With regard to acknowledgement above matter, in principle, the Supreme Court has very strict attitude in contract law. However the Supreme Court ruled that contractor is accepted as employer of subcontractor's employee only in exceptional cases in the labor law. For example, there are three different cases of judgment. These are the doctrine of the disregard of the legal entity, the doctrine of implicit employment contract relation and the doctrine of dispatched employment contract relation According to judgment of the Supreme Court, even though there is no contract being claimed between contractor and subcontractor’s employee, if the dominant-subordinate relation between them is being existed, the contractor could be employer of employee hired by subcontractor and this is indicated as the doctrine of “employer concept extension”. This means that the legal relation between employee and employer in the subcontracting could be decided upon judgment of specific and effective dominantsubordinate relations, regardless of existence and actuality of the contract. This paper reviewed that decides of supreme court be issued determination about concept of employer in the subcontracting after 2000s. Firstly, this paper conceptualized legal principles of judgment about concept of employer in the subcontracting. Secondly, this paper also reviewed what the legal theoretical limitation factors of “Employer concept extension” are. In this regard, this paper had been focused on drawing implications of legal which would be able to approach the problem about concept of employer more reasonably.