대법원의 근로기준법상 근로자 판단 핵심 요소에 대하여 ― 2018년 학습지교사 판결 및 이후 대법원 판결 검토를 중심으로 ―

The Supreme Court ruled in 2018 that Workbook tutors are workers under the Trade Union and Labor Relations Adjustment Act, but they are not employees under the Labor Standards Act (the “LSA”). To examine what is the Supreme Court’s key elements for recognizing an employee under the LSA, the ruling on the 2018 Workbook tutors, the ruling on railroad food stall operators, the ruling on postman who works at home, the ruling on native speakers Instructor, the ruling on Skylife service engineers, and the ruling of the person in charge of claim collection service were reviewed. It can be concluded that the Supreme Court’s key elements for recognizing an employee under the LSA is whether workers are subordinate to users for a fixed amount of work or a fixed amount of work time. But isn't the Supreme Court’s key elements based on traditional working relationships without reflecting the various employment and employment patterns and changes in reality? So It is necessary to establish the basic view based on the LSA’s legislative purpose to determine whether a person may be deemed a “employee” under the LSA. And determining whether the worker is an employee or an independent contractor, it is necessary to presumes a worker hired by an entity is an employee and places the burden on the hirer to establish that the worker is an independent contractor.