근로기준법상 근로계약 성립에 관한 연구

Although problems have been raised in various forms due to atypical labor contracts such as contract contracts, illegal dispatch, disguised contracts, and implied labor contracts, they have been resolved by linking them with direct employment such as illegal dispatch, recognition of worker characteristics under the Labor Union and Labor Relations Adjustment Act (hereinafter referred to as the 'Labor Union Act') and protection of industrial accidents. Nevertheless, discussions on issues such as illegal dispatch in contract contracts have been actively conducted, and the results of the discussions are as follows. First, it is unclear whether the contract is authentic or not. Uncertainty in the judgment of the establishment of a contract and an implied labor contract or illegal dispatch is a problem. In making legal judgments on various types of specific facts based on the provisions of the legislative law, it is inevitable that the uncertainty or predictability in interpretive theory becomes somewhat unclear. However, there is a question that the degree of uncertainty is remarkable in determining the authenticity of the contract. Second, it is a characteristic of in-house subcontracting. Under civil law, a contract is a typical contract, and according to the Freedom of Contract Act, it cannot be prohibited or restricted, such as a delegation contract, and it should be very careful to deny that it has the form of a contract. The fundamental cause of the problem of Korea's contract in the field of labor law is the so-called in-house subcontracting. In-house subcontracts are not easy to find in foreign countries, and most of these contracts start with the original contract to save labor costs, and a contractor with a superior position in a contract has intrinsic or essential characteristics that are bound to substantially affect the working conditions of the contractor's workers. From this point of view, it is acceptable that although it is formally referred to as a contract, it is developed in consideration of such special circumstances in determining whether a contract is established between a contractor and a contractor's worker for a contract such as an in-house subcontract. Third, business transfer. What is special about interpretation in the field of labor law is that the legal principles of recognition of the succession of labor contracts between the transferee under the business transfer contract and the worker who belonged to the transferor in relation to the continuity of the labor contract are judged differently from ordinary business transfer contracts. This interpretation theory deserves positive evaluation. Fourth, the division of the company. In the case of company division, the Supreme Court is applying the law of company division under the Commercial Act by analogy in the absence of prestigious regulations, but a partial positive evaluation is possible. The question remains in that it completely lacks procedures such as consent from workers whose succession of labor contracts is a problem. In the case of company division, the issue of succession of labor contracts should be legislatively resolved as in Japan. In the end, it's complete. It is natural under the law of freedom to conclude a contract that the former cannot be justified by the unilateral expression of intention of the employer without the consent of the worker, who is a unilateral party to the labor contract. The Supreme Court recognizes exceptional cases when the employer is clearly approved as a normative fact that generally governs labor relations in corporate society, or when members of the company are generally taken for granted without raising any objections and established as a de facto system within a company. Unlike in the previous case, this interpretation theory cannot be said to be remarkably wrong if it presupposes that it does not cause disadvantages in working conditions in calculating the number of years of service, but it requires very careful and strictness in judging the establishment of the practice in that it does not require the consent of workers.