전속적 도급근로관계와 법인격부인 법리

Since 1997 change in the labor market and organization of work, linked to neoliberalism, have increased the number of temporary workers who are fixed-term employed or work on outsourcing in Korea. Especially increasing of workers on outsourcing are conspicuous, it is a hot issue, job security and protection built around the employment relations are being challenged as the notion of “exclusive outsourcing employment”. In the exclusive outsourcing employment(the relation between three persons concerned; dominant company, subordinate company and employee of subordinate company), there are plural employers(the user-employer; dominant company and the supplier-employer; subordinate company) at the same time. The exclusive outsourcing employees have relations with both the supplier-employer and the user-employer. It has been argued that the exclusive outsourcing employee has no employment contract with the user-employer and the user-employer has no responsibility of employer. This legal structure of exclusive outsourcing employment make employer who have used employee in substance evade the responsibility of employer. This paper try to clarify of definition of exclusive outsourcing employee to be protected according to the conclusion piercing the corporate veil(disregarding the corporate entity). The doctrine of piercing the corporate veil is founded in equity and is applied when the facts warrant its application to prevent an injustice. However it is very difficult to foresee constructive employment with the user-employer(dominant company) and employee, because piercing the fiction of a corporate entity should be applied with great caution in employment relationship. If the user-employer could control the working conditions and infringe the right to employment, responsibility of employer should not be limited as one of supplier-employer (subordinate company). It is necessary to make another rule of law for employee of subordinate company.