장기요양요원(요양보호사)의 법적 지위 ― 근로자성과 규율의 특수성을 중심으로 ―

The Republic of Korea introduced the long-term care insurance scheme in July 2008. Among many players engaged in the long-term care insurance scheme, a long-term care worker provides his/her care service to the elderly at the forefront of the scheme and stands at the center of various relationships surrounding the scheme. As declared with the introduction of the long-term care insurance scheme, it is the society's responsibility to take care of the elderly, and such social responsibility must be reasonably shared by care providers in a broad sense. First, a long-term care institution's role is not limited to a mere execution of a contract of providing long-term care benefits to a beneficiary; it must fulfill its roles as a care provider by hiring and educating capable long-term care workers, and directing and supervising the payment of salary to those workers' care provision, so that beneficiaries would be able to receive benefits of a good quality. A long-term care worker must provide his/her beneficiaries with adequate benefits necessary for them based on his/her knowledge and experience. In other words, the long-term care institutions and long-term care workers get to engage in their work within the system of the state-established long-term care insurance scheme and the framework set out in the regulations. Accordingly, the state, after all, has the ultimate responsibility of properly setting up, regulating and supporting the scheme and regulations. The relationship between a long-term care worker and a long-term care institution is the contractual relationship under the employment contract. Accordingly, a long-term care institution, as an employer of a long-term care worker, is responsible for performing its obligations under various labor related statutes, including the Labor Standards Act enacted to protect employees. Still, there are many cases where long-term care institutions fail to perform their responsibilities as an employer. However, a long-term care worker, as an employee, must be protected under labor related statutes. Meanwhile, the public nature of the long-term care insurance scheme is required to expand further to improve the quality of long-term care benefits and to enhance the quality of life of a long-term care worker who, in practice, provides the beneficiaries with long-term care benefits. That is because it is difficult to expect that a small scale private long-term care institution would engage in a fierce competition for improving the quality of benefits provided to the beneficiaries and would guarantee job security to its long-term care workers. Socialization of the service of taking care of the elderly based on the long-term care insurance scheme means that that the state and the entire society would take a responsibility for taking care of the elderly. Accordingly, the state would be required to make proactive efforts to further expand the partial progress made up to now for the socialization of the responsibility of taking care of the elderly.