근로자개념에 대한 새로운 접근

This paper is a systematic study on the “method and standard” for determining the concept of a worker. The purpose is to: (a) define “the softening of personal dependency” as a phenomenon in which an employer’s right to direct is shifting from “direct management and control” of labor process to “indirect management and control” of labor performance by granting work autonomy to employees in line with the rapid and innovative development of information and communication technology; and (b) propose a model for determining the concept of a worker, which is a labor law challenge in the 21st century, in light of the fact that companies are pursuing “the softening of personal dependency” and “use of external manpower” as a part of their management strategies. In view of the foregoing paradigm shift, the author has systematized a “model for determining the “stepwise and synthetic concept of workers” by: (i) newly construing the meanings of “integration into a company or an organization” and “economic dependency”; (ii) increasing the importance and role of “integration and economic dependency” in determining the attributes of an employee; and (iii) setting “personal dependency” as a primary barometer and “economic dependency and integration into a company or an organization” as a secondary barometer. In this paper, the author defines: (a) “personal dependency” as the attribute necessary to ensure social protection as an employee to a labor service provider who is bound to his/her employer’s right to direct; (b) “economic dependency” as the attribute necessary to warrant a labor service provider social protection as an employee given that he/she provides labor and receives wage in consideration that serves as the sole basis for his/her economic survival; and (c) “organizational dependency” as the attribute necessary to guarantee social protection as an employee to a labor service provider since he/she provides labor in an integrated state, that is, a worker being organically and functionally combined with an organization, company or establishment. The paper also provides the elements for determining the aforementioned attributes, and divides “organizational dependency” into formal integration and substantial integration. Under the systematized model as seen above, workers are regarded as internal manpower if formal integration is acknowledged and as external manpower if deemed otherwise. External manpower is classified according to the level of personal dependency, namely, high dependency, low dependency, and zero dependency. A labor service provider is easily determined as an employee if there is high level of personal dependency, but in the case where personal dependency is low, determination is based on economic dependency and substantial integration. If both attributes are acknowledged, a labor service provider is determined as an employee; if only the former attribute is recognized, a labor service provider is regarded as a worker in special employment; and if only the latter attribute is acknowledged, a labor service provider is deemed as a self-employed worker. In cases where there is zero dependency, a labor service provider is determined as a worker in special employment depending on whether economic dependency is acknowledged. Based on the above, this paper proposed a legislative bill on the concept of workers, workers in special employment, and labor contracts.