노동법상 근로자ㆍ사용자 개념 확대를 둘러싼 쟁점과 입법적 과제

In recent years, as diversity in employment type proliferates, demands for amendment to labor law provisions which define the concept of employer and employee are being bought up. To study the validity of this argument, this paper begins with dividing the conditions where the concept of employer and employee matters in labor law into four categories. These are; first, the conditions where the question of so-called economically dependent contractor, who works in situations of which some of typical characteristics of traditional employer-employee relation (e.g. employer's direct control and command over the employee) are dropped out, is an employee or not arises; second, the conditions where user company or principal company formally has direct control or direction over third party company's employee while avoiding all or some of responsibilities in labor law, legally or illegally, like in dispatched or temporary agency employee, or in-site subcontracting employee of the subcontractor; third, the conditions where the parent company determines indirectly terms and conditions of employment of the subsidiary company in business groups but abdicates responsibilities of labor law by taking advantage of the difference in formal legal entity; fourth, the conditions where in the event of business changes, the prospect acquisition company has de facto influence on the terms and conditions of employment of employee in target company while taking absolutely no responsibility in labor law. This paper argues that it is impossible to solve legal problems that occur in these four conditions by amending the definition provisions of employer and employee in the Labor Standards Act and the Trade Unions and Labor Relations Adjustment Act. It is because when approaching the problems in this way, contradiction of other provisions in the Labor Standards Act and the Trade Unions and Labor Relations Adjustment Act occurs, which would result in inconsistency in other laws. To settle these problems reasonably, instead of amending employer and employee definition provisions of the Labor Standards Act and the Trade Unions and Labor Relations Adjustment Act, it is necessary to clearly distinguish between special issues of each category, and to seek separate solutions in accordance with each condition.