플랫폼 노동과 근로자성에 대한 최고법원 판례의 비교법적 검토

In determining the existence of an employment contract relationship, Korean judicial precedents have consistently required the existence of a “user-subordinate relation”, holding that: the user-subordinate relation is determined by actual labour relations such as the existence of direction/supervision relations, wages as a price for labour, the nature and content of labour between the employer and provider of labour regardless of the form of the labour supply contract, be it contract of employment, contract for work, delegation or anonymous. While various indicators have been listed in judicial precedents, previously the courts noted an existence of ‘personal dependence’ such as whether the employer directed or supervised concretely and/or directly the performance of work, before other indicators. Like other jurisdictions, an emergence of new type of precarious work mediated via digital labour platform has challenged the validity of such case law. In particular, the claim that platform workers could freely choose whether, when and where they work makes the classification of platform workers more difficult. Against this, European courts are recently deciding that platform workers such as Uber drivers, delivery riders and micro-task workers are those who should be entitled to labour protection. This article conducts a comparative study on these judicial decisions of the highest courts in France, Spain, Germany, the United Kingdom and Korea. From this comparative study, some common features and lessons are found as follows: First and foremost, the principle of primacy of facts is notably adopted and applied by a wide rage of national courts. It is noteworthy in particular, that European courts do not cling to the contractual terms of the agreement to the detriment of an assessment based on the actual circumstances of the case. Furthermore, the possibility of workers to set their schedules and not be formally obliged to log on the digital labour platforms does not constitute an insurmountable obstacles in many jurisdictions. For example, the theoretical freedom to set own schedule is quite different from the actual freedom, in the courts' view. In addition, (in)direct control that exercised by digital labour platforms via algorithmic management, makes it possible to manage in a way that is as effective as or even more than management based on direct control/direction given by an employer to his/her employees.