간병인의 근로자성과 노동법적 보호 방안

In determining whether one is an employee under the labour laws, the legal precedents have developed such indicators as the power to instruct the performance of work, the nature of wages as the price for labour, the possession of fixture, whether or not the worker provides labour continuously or exclusively to the employer and so on. Compared with this, certain types of workers provide their labour for one client or one enterprise via the façade of self-employment and they are wholly dependent on that enterprise. I will argue these questions with a case of a private care worker in Korean hospitals. Most of them provide their labour to patients through a private employment agency under the supervision of a hospital. However, there are no contracts among them and therefore private care workers have been regarded as an 'informal worker' or a 'domestic worker'. This article starts with an overview of their employment conditions and analyzes the characteristics of triangular employment relationship. Thereafter, I examines the legal precedents regarding the concept of employee and whether or not private care workers are protected under Korean labour laws. The main issue is how the nature of subordinate relationship should be established, considering the characteristics of triangular employment relationship. Finally, I analyze how the problem of independent workers is related to the boundary of workers’ rights and propose a further step to understand the changing nature of employment relationship and to adjust the scope of labour laws.