도급과 파견의 구별에 관한 최근 판결의 동향과 쟁점 — 대상판결: 서울고등법원 2017.2.10. 선고 2014나49625 등(병합) —

The court of this case denied the labor of subcontract and acknowledged the illegal dispatched labor to the indirect processes in the motor industry. irrespective of the use of word: subcontract. If there is the order or direction of user-employer to the workers, the labor belongs to the dispatched labor from viewpoint of employee dispatching or the Protection of Dispatched-Employee Act(hereafter the ‘PDEA’). So, user-employer has the duty to hire the dispatched workers. If user-employer doesn’t hire them, they have the right to ask for the verdict in substitution for the user-employer expression of will. So that verdict is found in the court, an employment relation between user-employer and dispatched workers is established. Two problems is proposed on this case: First, for it is difficult to distinguish the order or direction of user-employer’s from that of the contractor, the problem with contract for dispatched labor or contract for any construction work. If the company that dispatchs the workers independently exists and user-employer don’t directly order the workers but contractor. the legal relation between user-employer and workers is that of subcontract. That is to avoid the judgement based on the element of dependent labor relation. Second, PDEA has the clause that user-employer should directly hire the dispatched workers in case of illegal dispatched labor. the court made an interpretation of this clause as concluding employment contract. I don’t agree court’s understanding of this clause. This clause is the meaning that user-employer has just obligation to hire the dispatched worker, because the administrative fine for negligence is imposed on him in case of the user- employer’s violation of the clause.