사용자책임의 요건으로서 사용관계

According to art. 756 of the Korean Civil Code, the employer’s vicariousliability presupposes the employment relation betweein her and thewrongdoer. Case law as well as academic doctrine for long time have usedthe control test for this purpose: the employer must have right to orderand supervise the course of the tasks being done. If reviewed critically,however, it is not sure whether other policy considerations are at workbehind the prima facie coherent and stable case law. In this article, theauthor tries to clarify these policy factors from comparative perspective. He gives an overview of the Korean case law, compares it with thosefrom other jurisdictions (Germany, France and England) and describes hisown suggestions. It is submitted that the control test still plays animportant role, while other elements and circumstances must be taken intoconsideration and that the joint vicarious liability should be accepted incase of transferred employee.