근로자파견성’ 판단 기준 재정립의 모색 - 판례에 대한 분석을 중심으로

In the case of judging the concept of dispatch of workers where illegal dispatch is problematic, it should start from the point of view of judging the concept of dispatch of workers based on the over all relevant laws, including the Act on the protection, etc. of temporary agency workers. The principle of restricting indirect employment can be confirmed in many current laws such as Employmet Security Act, Labor Standards Act or the Act on the protection, etc. of temporary agency workers. Since the Supreme Court's decisions about criteria for dispatching and contracting in February 26, 2015, the courts are on the principle of substantive judgment, which is reasonable. In cases where the relationship between the contractor and several subcontractors is problematic, even if there is no formal contractual relationship between the contractor and the specific subcontractor, the principle of substantive judgment must be applied. The courts does not classify the essential and incidental standards in judging the concept of dispatching workers. The essential criteria should be to judge whether the conduct of the direction, such as exercising against the employee directly hired by the employer, exists between the contractor and the subcontract workers. Therefore, the supervision and direction of the contractor in the course of the work of the subcontract workers and the integration of the subcontract workers into the organization of the contractor should be reviewed as the essential standards. If supervision and direction of the contractor is recognized, integration of the subcontract workers into the organization of the contractor must also be recognized. The concept of dispatch a worker should not be denied because of ancillary criteria.