노동법상 근로자 개념과 종속성 판단에 관한 소고 - 학습지교사의 근로자성 판단에 관한 대법원 판결(대법원 2018. 6. 15 선고 2014두12598, 12604(병합) 판결)을 중심으로 -

In Korea, there are teachers who teach students privately with their materials. Recently, The Supreme Court recently saw that the teachers could have the right to make Union. But the Supreme Court judged that the contract relationship between teachers and the company was not a working contract relationship. The Supreme Court made clear the distinction between the worker concept in the contract law and the worker concept in the union law. First of all, the contract to provide dependent labor is recognized only when the purpose of contract payment is the instrumental use of human labor. The so-called personal dependency must be premised. Therefore it is important to (i) include the right to exercise one’s right to personnel management and (ii) to bear the risk of management. On the other hand, in the labor law of Union, the economic dependency between the parties in the labor contract is important. If fair trade is virtually impossible due to the inequality of economic power, union law guarantees the right to unite the laborers who are economically weak. It is important to check the contractual equivalence between the parties, rather than the contents of the contract or the facts of the entrusted work. There is also a gray area. Directive and obedience may exist even if they are not related to workers and users under the Labor Standards Act. In some cases, he or she is obedient when the work order is issued among the parties involved in the delegated contract. At this time, the facts of directives and obedience may make it seem like a working-contract relationship exists. However, the facts that appear under economic subordination may seem very similar to the supervisory relations in apparent labor contracts. It should be noted, however, that Economic and personal dependencies should be distinguished. Most importantly, as the mandated labor contracts are expanding. There is a need to urge the evolution of the labor law system for those who are not emplyee but are union workers. The concept of workers varies. As a social underdog, the principle that workers should be protected should be maintained. The important thing is to identify who is socially disadvantaged. This is why legal Regulation for the future labor market seems difficult.