파견과 도급 구별 기준에 관한 비판적 검토 — 대상판결: 광주고법 2016.8.17, 2013나1128로 —

The criteria that distinguish dispatch from subcontracts have been made by case law. Most judgments distinguish dispatch from subcontracting on five criteria. However, the recent Gwangju High Court ruling is based on whether a subcontractor's worker has been transferred to the workplace of the original contractors and whether he has provided labor based on his command. This article critically reviewed it. Integration is not an independent distinctionscriteria, but merely the result of the directive exercise. Even if the integration is the criteria for dispatching and subcontracting, it should be regarded as being incorporated into the labor organization, not transferring it to the workplace. As a result, it is crucial whether the directionsright are exercised by the original contractors. However, it is necessary to distinguish between the directive for the subcontracting purpose and the labor law directive. If the original contractor completes the work specification and the subcontractor completes the work standards and the worker works as it is, the contract contents and actual work are consistent with each other. It should be seen that the legal relationship as contracted is done. The German Federal Labor Court takes this position. However, the judgment of our country affirms the dispatching relationship as it is determined that the contents of the work and the method of work are determined by the original contractors and accordingly, when the workers are working, the direction of the original contractors is given. In this case, the judiciary actually ignored the contracts of the parties and enforced the legal form. The enforcement of such a form of law should not be unreasonably recognized. The judiciary should not pursue legislation