용역업체의 교체와 근로관계 승계 ― 대상판결: 서울고등법원 2017. 6. 14. 선고 2016누62223 판결 ―

In the event that the business performed by an existing service company is transferred to a new service company as the replacement of Service Company, the existing service company will inevitably abolish all or parts of their previously operated business. At this time, whether labor relations of workers belonging to the abolished business are succeeded to the new service company will occur. In addition, if labor relations are succeeded, it will be problematic that what kinds of standards determine the working conditions. In Korea, there is no provision about the succession of labor relations by the transfer of business. Therefore, the courts have cited the legal theory of business transfer. The tendency of mainstream precedents was that comprehensive succession of labor relations is not allowed between existing and new company because there is no contractual relationship between them. The unusual cases an opposite of mainstream cases based on expectation rights or implied business transfer contracts based on labor practices have the weakness of a legal basis. Ultimately, it should be addressed by legislation that aims to resolve the succession of labor relations and the legislative framework for protecting the working conditions. However, it is necessary to supplement the methods of legal action until that legislation is enacted, such as an analogical application of the legal theory of business transfer or applying a contract for third parties which is for the workers belonging to the existing service company.