사업의 외주화에 따른 고용관계의 법해석론 ― 유럽연합 및 영국 사례와의 비교 ―

Firstly this article analyses and assesses the case law on the legal effect of outsourcing on employment relationship. While critically assessing the current case law, it makes an argument that its main deficit is to apply economic dismissal law to a central organisation (in the case of the first contracting-out) or a first sub-contractor(in the case of a so-called 'second generation transfer), ruling out the responsibility of a first sub-contractor and a second sub-contractor respectively. Furthermore, the article proposes by legal interpretation that employment relationship should be maintained after outsourcing. The reason is that current case law on the transaction of business itself and employment relationship is not based on explicit statutory grounds and that the case law has to be extended to cover the area of outsourcing and transformed for employment protection to be made in it. Secondly, this article analyses and assesses the case law on outsourcing of both the European Court of Justice (ECJ) and the UK courts with a view to making a comparison with the Korean case law. The analysis and assessment of the case law of the UK courts is confined to the case law before 2006, when service provision change was newly introduced. This is because that this article only deals with legal interpretation on outsourcing. In analysing and assessing the case law, this article put all the cases into two types, namely labour-intensive one and asset-reliant one. By this analysis and assessment, this article aims to show that both the ECJ and the UK courts, by purposive interpretation of the EC Acquired Rights Directive, held that employment relationship has to be maintained after outsourcing. The example of both the EU and the UK case law supports the argument that this article makes in relation to the Korean case law on outsourcing.