사내하청과 단체교섭, 다시 해석의 자리에서 ― 원청의 사용자성에 관하여 상반된 결론에 이른 고등법원 판결들에 대한 검토 ―

In the academic and practical spheres, there has long been contentions over whether prime contractors bear the obligation to engage in collective bargaining with subcontracted workers in the area of inhouse contracting. A partial amendment to the ‘Trade Union Act (Draft No. 2123038)’ was ratified during a National Assembly plenary session on November 9, 2023. This amendment aimed to clarify the definition of “employer” within the ‘Trade Union and Labor Relations Adjustment Act’, particularly regarding the concept of ‘De facto Governing’. Initially perceived as a legislative resolution to the issue, this amendment faced rejection subsequent to the President's exercise of the right to request reconsideration on December 8, 2023, and failed to meet the heightened quorum requirements for decisions thereafter. Consequently, the matter was sent back to the realm of judicial interpretation. Key among the judicial precedents shaping this ongoing debates are the rulings of the Busan High Court on November 14, 2018 (Hyundai Heavy Industries case), which denied prime contractors the status of counterpart for subcontracted workers’ bargaining, and the ruling of the Seoul High Court on January 24, 2024(CJ Logistics Corporation case), which conversely affirmed such status of legitimate bargaining entities by embracing the concept of ‘De facto Governing’. These rulings are presently under appeal and pending. The pronouncement of the Supreme Court on the matter is imminent as the Hyundai Heavy Industries case got referred to an en banc session. This article conducts comprehensive comparative analyses of the arguments presented in the mentioned High Court rulings and demonstrates that the conclusion drawn in the Seoul High Court ruling is legally sound and defensible. Such analyses include, but are not limited to: 1) the application of constitutional legal interpretation, 2) the realization of legislative intent behind union law, 3) recognition of evolving labor realities and the judicial roles therein, 4) the precedential significance of Supreme Court rulings, such as the shipping union case, 5) the broad applicability of the Supreme Court's ‘2007du8881’ ruling, 6) the normative effects of collective agreements, 7) the application of the principle of legality, and 8) the compliance with international labor standards promulgated by the International Labour Organization (ILO) as a benchmark for legal interpretation. Furthermore, this article presents a prospective outlook on resolving this dispute, advocating the achievement of industry-wide peace through mutual dialogues and compromise within the framework of collective bargaining. This approach is preferable to the outright denial of subcontracted workers' bargaining rights, given the absence of a direct labor contractual relationship with the prime contractor.