도급과 파견의 구별기준에 관한 법리 ― 판례의 변천과 문제점을 중심으로 ―

Thanks to the diversified forms of employment currently being undertaken in South Korea, not only has direct employment (fixed-term work) been established as a type of labor supply, but also indirect employment (dispatched work and subcontract work). In particular, while subcontract work has been observed in the manufacturing or construction industries, such as shipbuilding and car manufacturing, subcontract work has also been expanded to take in the service industry in order to secure employment flexibility and cut down on personnel expenses since the 1997 Asian economic crisis. After enacting the Dispatched Worker Act in 1998, the criterion to distinguish between dispatched and subcontract work has led to severe problems, so the Ministry of Labor set up criterion guidelines to distinguish between those workers and it has also been conducting administrative supervisions. However, as the criterion to distinguish between subcontract and dispatched work is not clear, legal conflicts have constantly arisen with regard to disguised subcontract work or illegal dispatched work. Under these circumstances, the Supreme Court this year ruled on two cases that fall into this category, namely the “KTX female crew members’ case” and the “Hyundai Motors case.” In its ruling on these two cases, the Supreme Court presents common opinions to distinguish between subcontract work and dispatched work. The common opinions are as follows: (1) whether the original contract company can command and instruct workers who were hired by subcontractors by issuing binding orders during the course of their work; (2) whether workers who were hired by the subcontractors are incorporated into the original contract company by working with workers who were hired by the original contractors; (3) whether the original contractor has the right to determine the recruitment and working conditions (the number of workers, education and training, working/break time, vacations, assiduity and so on) of workers who were hired by subcontractors; (4) whether the duties of workers who were hired by the original contractor and by the subcontractor are divided and the workers’ duties have expertise and technology; and (5) whether the subcontract company has independent business organizations or facilities. The Supreme Court warns that it is necessary to examine the above-mentioned elements comprehensively. It can be said that this precedent set by the Supreme Court clarifies the criterion to distinguish between subcontract work and dispatched work. However, questions have arisen as to the legal principles drawn from the Supreme Court’s ruling on the “KTX female crew members’ case” and the “Hyundai Motors case.” The questions are the following: the former is “subcontract work relations” as this case satisfies the five elements mentioned above, and the latter is “dispatched work relations” as the case does not meet all elements. When carefully observing the facts of both cases, however, the elements of subcontract work and the elements of dispatched work are blended together. Nonetheless, like the objects of the Supreme Court’s decisions, the questions about whether an all-or-nothing decision could be possible still remain. Rather, it appears that the conclusions reached about the two cases were formed in advance and then the decisions tried to adapt to those conclusions. With regard to future cases, much attention will be given to how the Supreme Court’s legal principles to judge will be employed and analyzed.