근로조건 법정주의와 근로자성 판단

Section 32 subsection (3) of the Korean Constitution regulates the legalism of working conditions based on human dignity. This legalism of working conditions, in addition to Section 33 of the Constitution, forms the basis of social protection necessary for dependent employees. As a prerequisite for the application of human dignity under the legalism of working conditions, it is required to be a legal relationship based on the premise of being employees. This means that the fact which a worker in question is an employee is a prerequisite for the application of the legalism of working conditions based on human dignity. Therefore, the narrower the concept of employees is formed legislatively, the more workers are not subject to the legalism of working conditions. Since this cannot be said to be desirable for realizing legalism in working conditions, how the concept of employees is legislatively formed is also very important from the point of view of the legalism of working conditions. Another important point in the legislative formation of the concept of workers, which is a prerequisite for the legalism of working conditions, is how to distribute the burden of proof on criteria for determination of legal status of a worker concerned. The distribution of proof should be made appropriately based on justice and equity. Therefore, it cannot be said that it is appropriate not only from the point of view of distribution of the burden of proof, but also from the point of view of the legalism of working conditions, to interpret for a worker concerned to establish all criteria for determination of legal status of a worker concerned as in the current case law. This is because the court must also contribute to the realization of the legalism of working conditions through legal interpretation. This paper discussed it would be desirable how to couple the measure for determination of employee status, which is the basis of the legalism of working conditions based on human dignity, with the distribution of the burden of proof based on justice and equity. To this end, after considering the legalism of working conditions, the legislation on the concept of employees and determination of employee status in the United States and Germany was analyzed by comparative approach. Based on this analysis, I referred to the distribution of legislative burden of proof on the so-called ABC test, critically accepted a theory about the measure for determination of legal status of a worker concerned, i.e. the theory of ‘voluntary acceptance of entrepreneurial risk’ suggested by professor Rolf Wank in Germany, and then presented a legislative proposal on the measure for determination of legal status of a worker concerned. For the distribution of the burden of proof based on justice and equity, a criterion on ‘economic dependence’ that a worker concerned should prove was presented, and as criteria that the alleged employer should prove, five criteria which consist of criteria indicating ‘personal dependency and integration at the performance of the work’, a criterion indicating ‘entrepreneurship’ and other criteria were presented. I made a legislative proposal that the alleged employer should establish at least four of these five criteria. If he succeeds in proving four of these five criteria, the worker concerned would be regarded as a self-employed, not an employee. In the legislative formation on the distinction between an employment contract and, in particular, a contract of service and a contract for service, based on these criteria, the legalism of working conditions will function as a guiding principle.