근로자 개념의 재검토 : 4차 산업혁명, 플랫폼 노동의 부상에 따른 ‘종속노동’의 재조명

This article aims to analyze the concept of “employee” in labour law in critical point of view in light of digital transformation and the rise of digital platform work. The undefined group of service providers in digital platform work give rise to the problem of employee misclassification. Should they be classified as protected group of employees under labour law, or independent workers? Digital platform companies assert that service providers work freely without direction and control from employer, but this claim is unlikely when we consider the reality of digital platform workers, who work long hours, low pay under stressful control and surveillance from algorithm that manage digital platforms. In this article, I suggest that a correct reading of Prof. Hugo Sinzheimer's Grundzuge (2nd ed., 1927) indicates that “subordinate labour”, the foundational concept of labour law, is a much more flexible analytical concept which could possibly include workers in the grey area under protection of labour law. Similarly, the recent Supreme Court decision of California (the 2018 Dynamex decision) introduced “ABC test” in defining employee – which is a much more concrete and simple legal test than the existing “control” test to decide who is an employee. I argue that ABC test fits better in the original meaning of subordinate labour defined by Sinzheimer, and that Korean court decisions and labour legislation should meet substantial change in the arena of the concept of employee. In the end, our labour law is in a dire need of a new concept of employee in the face of changing nature of work in 21th century workplace.