근로자성 판단기준: 사용종속성을 넘어 ― 백화점 위탁판매원 사건을 계기로 ―

The Supreme Court's precedent calls for a subordination relationship based on the criteria for recognizing employee under the Labor Standards Act (the “LSA”). Many scholars have not raised any particular issue on this point either. The LSA defines the term of employee as a person, regardless of the kind of occupation, who offers labor to business or a workplace for the purpose of earning wages. The interpretation of this term does not result in a subordination relationship. Nevertheless, the reason why precedents and theories require a subordination relationship as a criterion for determining employee is that they understood the LSA as an exception to the free contract principle. The introduction is set in more than 100 years before the Labor Law was born. However, over 100 years later, the rule by the Constitution was strengthened. Our constitution declares the right to work. The right to work does not only protect subordinate labor, but also all labor, which is a means of livelihood, is subject to protection. The approach from the perspective of right to work does not require the protection of the LSA to be limited to subordinate labor. The determining employee should be identified under the LSA from the perspective of effectiveness to guarantee the right to work. This requires a focus on the concept of a business or a place of business, not the subordination relationship. In other words, whether to be incorporated into another person's business and provide labor is the key. The meaning of whether to be incorporated into another business should be interpreted to suit the new working environment and constitutional consciousness.