법정근로관계 설정의 법리 ― 파견법과 기간제법을 중심으로 ―

Article 4 (2) of the Act on the Protection of Fixed-Term and Part-Time Worker(No. 8074, Dec. 21, 2006.) provides that "if any employer hire a fixed-term worker for more than two year, such fixed-term worker shall be deemed a worker subject to non-fiexed term employment contract". Article 6 (3) of the Act on the Protection of Temporary Agency Worker(borrowed worker) provides that "if a using employer continues to use the temporary worker for more than two years, it shall be deemed that the temporary agency worker is hired the next day of the two year term expiration"(hereinafter, "the direct employment deeming provision"). The supreme court gave a decision that the direct employment deeming provision has the legislative purpose of establishing a legal fiction of direct employment relationship in the private relationship between the using employer and the temporary agency worker besides administrative supervision or criminal punishment in order to prevent long term use of temporary agency workers and encourage his/her stable employment. Although the supreme court's decision, some employers filed a constitutional petition against the direct employment deeming provision. The case is still pending in the constitutional court. This study is dealing with the direct employment deeming provision validity through the decision analysis of the supreme court. In conclusion, this study proposes that legal employment relationship constituted by labor law without contract should be justified by the fact that employer has used the worker.