독일에서의 위장도급 판단 기준에 관한 논의와 그 시사점

It is clear in theory to distinguish between the constructing contract and the labor contract. However, in practice, very difficult. because the case that the elements of the constructing contract and the labor contract is mingled are many. Because of issues like this, Finding a clear standard of distinction is very difficult. the labor contract cannot really be judged by he constructing contract. the constructing contract is not the subject of labor legal regulation. Germany also is not clear discussion of standard of distinction of camouflage outsourcing. It is correct as seen in the process to continue to develop. These points, recently, has been implied well in the German precedent. Precedents and academia discovered countless subordinate "case" to determine the illegal constructing contract relationship. However, they could not find a definitive indicators. In German court, there is a case in which the provision of work tools and material is judged to be very important. However, there is also judgment of the reverse. It is not important whose working tools and materials is. Facilities of equipment's own also same. After all, even the German court, when determining camouflage outsourcing today, they have limit. If in such a case, it is better to rather admit a new type of human resources contractor relationship. it is reasonable to understand the contract itself the elements of labor and contractors are mixed. When the white and black colors are mixed, it is correct to be seen in gray as such. They have to admit the gray zone. Conventional labor law is identified as a tool for regulating the real industrial relations. However, the role of labor law in modern society, with the current regulations, it is necessary to have to concentrate on to continue to actively form a new order. it is necessary to define in detail what labor are legally required protection, also it is possible.This is considered a practical approach of problems that we can narrow down the divergence between reality and law philosophy of labor that we face.