독일 민법전상 근로계약에 대한 비판적 고찰

This paper considers the interpretation of employment contracts in the German Civil Code, an amendment to sec. 611a(1) of the German Civil Code in response to the rapidly changing world of work, and the implications of these discussions. The central conclusions of this paper are as follows. First, employee status should be determined on the basis of two main criteria: (i) Being subjected to another person’s power to issue instructions(i.e. subjection to the instructions of another), and (ii) the integration into the company organisation or the work organisation. In the case of finding of employee status by incorporation, essential integration as shown below is required. Wank’s indicator of the "lack of opportunities to make entrepreneurial decisions on one’s own account" should not be seen as a separate and equal criterion to the two above, but rather as a sub-criterion of integration or subjection to the instructions of anothe, which as individual elements make up the content of such a lack. With regard to sec. 611a(1) sentence 6 of the German Civil Code, where the designation and performance of a contract is formally formed as a contract to produce a work or a service contract, but the contract is in reality performed as an employment contract, the legal relationship is recognised as an employment relationship, subject to the fulfilment of specific requirements, such as the continuity and consistency of the performance to a significant extent, as long as the parties are at fault for such performance Second, based on considerations as described above, it is proposed to lay down the criteria for determining an employee status as article 2-2 par. 2 of the Korean Labour Standards Act, which includes the following contents. (2) Even if the nature of the work dose not require or requires only to a limited extent, subjection to the instructions of another, subjection to the instructions of another according to paragraph 1 sentence 1 is to be regarded if an person obliged to perform services is considerably integrated into the company organisation or the work organisation of an person entitled to services. There is considerable integration if the person obliged to perform services performs his work using the facilities, equipments or labour force of the person entitled to services or relies on the person entitled to services with regard to the content, modality, time and place of the work, thereby creating the impression that the person obliged to perform services is an employee of he person entitled to services. If there has been a considerable degree of temporal integration, it shall be presumed that there has been integration in accordance with sentence 1.