종교인의 근로기준법상 근로자성

Recently, there has been an increase in cases in which employee status of religious person is an issue under the Labor Standards Act. There are not many prior papers dealing with the employee status of religious person, but there are not a few cases of dispute in the Labor Relations Commission or in courts. In this paper, I examined each of the cases in which employee status of religious person has been contested in courts since 2010 and examined whether they are employees or not by type(job). The representative types in which judgments are divided over employee status of religious person are the associate pastor and the missionary. The difference in judgment on employee status seems not just because the facts are different, but because of differences in perspective on how to consider the specificity of religious person. This means that different conclusions are drawn in legal reasoning, so the courts should secure legal stability by unifying legal reasoning in the future. Looking at the rulings that deny the employee status of religious person, the grounds seem to be largely four as belows: ① It is not a business or workplace to which the Labor Standards Act applies. ② Due to the nature of pastoral activities that focus on religious and spiritual teachings, specific or direct command and supervision or considerable command and supervision are not recognized. ③ Since it is characterized by service or volunteerism based on religious beliefs, the provision of work cannot be regarded as labor. ④ Even if a religious person receives a certain amount of remuneration, this is only an honorarium or a living subsidy, and cannot be regarded as a wage. However, the above grounds are not reasonable for the following reasons: ① Non-profit tendential business such as religious business also falls under the Labor Standards Act. ② Specific or direct command and supervision are not required to recognize employee status under the Labor Standards Act. And, even considering the characteristics of pastoral activities that focus on religious and spiritual teachings, considerable command and supervision are recognized. ③ As long as money is paid in excess of actual expenses, it cannot be regarded as a service only. Even if it is characterized by volunteerism based on religious beliefs, it is generally recognized by tendential business. As long as they live with the remuneration paid in return for the provision of work, the work provided by religious person corresponds to labor for the purpose of wages, and the remuneration corresponds to wages. Unless they are in a position representing a religious organization such as a pastor in charge, except when a particularly unusual facts are recognized, we must recognize the employee status of a religious person as long as it meets the criteria for judging employee status presented by the precedents