보험자에 대한 보험설계사의 지위에 관한 연구

As insurance agents obtain their status through appointment contracts and work under unique work environment, there is an issue as to whether they are workers under the Labor Standard Act with respect to the insurance companies that hire such agents. Also, there is a question as to whether such persons are commercial employees under the meaning of the commercial law with respect to the scope of authorities to make out insurance contracts. Due to the changes to the forms of employment resulted from economic development, there have emerged a new class of workers that do not fit nicely to the category of workers under the labor standard act. As for these people, the scholars in the field of labor law mainly discuss the expansion of the scope of workers in order to protect such people. They have presented arguments and views to understand the concept of supervision and subordination or to consider the unique characteristics of such employment, and this represents a departure from the traditional approach. Such views point out that the employers can avoid the label of employment by manipulating the requirements for employment, for example, the elements constituting control and subordination, as they are within the employers’ control. They argue that the agents shall be classified as specialty workers by focusing on broad interpretation of subordination and control. They also attempted to include as elements such as how much the companies need such work to be done by the agents and whether the agents stand at equal footing with such companies. Their attempts are significant in that the scope of workers has been accordingly expanded. If we apply these new views, in addition to the traditional standard of control and subordination, to insurance agents on a category by category basis, the agents in the form of telemarketing and the heads of local branches are with nature of workers as they provide traditional form of labor. However, as for the insurance sales representatives, they do have discretion on their work conditions such as place and time to the extent that they do not violate the order of sales practice and they collect commissions on the contracts they acquired outside the companies, and their performance is objectively verifiable by the companies. As stated above, the main function of such salse agents is to find potential customers outside the company, and therefore it is not easy for the company to monitor their activities closely. Further, unlike caddies or private tutors who have routine work places and schedules, the agents have flexible and independent work schedules, and therefore it is rather difficult to recognize comprehensive control or subordination for them. Consequently, they occupy a substantially different status than that of traditional workers. In addition, the fact that they can perform their task of recruiting potential insureds at outside locations and/or through the Internet or telephone offer another reason why it is difficult to deem them as workers. By the way, such agents chose their careers precisely because of the flexbility that they can enjoy in selecting work locations and schedules with no rigid supervision and control by the companies, and they are compensated on commission basis. This shows that there is no strong need to recognize them as workers. However, at the same time, they are economically subordinated to the companies, as they represent specific companies, and such companies typically reserve the right to cancel the appointment contracts if such agents do not meet their sales goals. Their job security is not that solid, and they do not have equal bargaining power. In this regard, they are not substantially different from other types of workers. In this regard, they deserve the same level of protection. In order to protect them, the terms of appointment contracts are to be fairly negotiated on equal footing, and the companies should not be allowed to terminate appointment contracts too easily for the agents’ not meeting the sales goals. Further, the system should be modified to preserve the independence and flexibility necessary for these agents. Toward this goal, there should be provisions in the Insurance Business Act to restrict unilateral termination of appointment contracts and to prohibit undue interference by the companies. One can also utilize the existing rules to eliminate disadvantages for the agents, by securing fair negotiation process and requiring reasonable terms for such contracts.