근로자 파견 법리의 불법구조와 분석 - 파견과 도급의 구별 기준 정립을 위한 시론

To manage an efficient business organization as well as save production and labor cost, businesses largely rely on external labor. External labor is mainly used in the form of in-house subcontracting where a client contractor (hereinafter “client”) facilitates workers of another prime contractor (hereinafter “contractor”) to work at the client’s workplace. The problem, however, is not in contracting out and making use of external labor. The problem is that even though businesses hire workers with rights protected by the Temporary Work Act or the Fixed-term Act, they disguise these workers as contract workers or entrusted workers to avoid being subject to related labor laws. Disguised subcontracting not only raises problems in the context of labor law, it also raises inequity issues. As disguised contracting is subject to criminal punishment under the Temporary Work Act, it is important to distinguish contract work and temporary work prior to punishing the user company. Unfortunately, the current law does not clearly distinguish the difference between contract work and temporary work. To be sure, progress has been made regarding this issue. As a result, many cases were accumulated and composed together to establish legal principles that provide standards to differentiate contract work and temporary work. In addition, in 2015, the Supreme Court provided a general standard using various cases including the Hyundai Motor case. Despite the provision of the general standard, however, a more explicit standard to differentiate the two works is required for the following reasons: first, the general standard is a mere group of signs drawn from previous cases; second, the general standard does not fully reflect the distinctive features of each respective type of in-house subcontracting; and third, the process of making a comprehensive judgement after individual judgement is very unclear and as a result, despite the Supreme Court’s decision in 2015, judgements among lower courts have remained inconsistent. Also, the Korean government has been making efforts to address the problem of disguised contracting on industrial sites by referring to the Guidelines on the Judging Standards of Temporary Placement of Workers (April 19, 2007) as outlined in the Reference to Classify Temporary and Contract Work. However, these guidelines do not reflect the general standard set out by the Supreme Court in 2015. This type of miscommunication can hinder the predictability of judgements distinguishing temporary and contract work, and eventually weaken the public’s trust in law. It can also raise doubts on the effect of measures taken to prevent further disguised contracting. Furthermore, it is important to note that the Supreme Court focused on the status of the worker when establishing the classifying standard. Thus, further discussion is necessary to determine the suitability of the standard when applying it to interpret criminal elements related to the violation of the Temporary Work Act. Based on such research, this article concludes that the current Temporary Work Act should be at the center of establishing the classifying standard. This article also proposes a new standard to distinguish temporary and contract work focusing on the requirements of temporary work under the current Temporary Work Act, as well as the specific contents of the authority to conduct which was developed through the legal principle set out by the Supreme Court.