하도급법 용역위탁 규제의 실무상 쟁점과 개선방향

Although it has been 20 years since the introduction of the regulations on service subcontracting in the Subcontracting Act, the relevant legal provisions as well as the Korean Fair Trade Commission’s notice under the law’s delegation are not clear, and there is a need for practical improvements. Compared to other transactions, such as manufacturing and construction subcontracting, where the applicability of the law is relatively clear, the applicability of the law to service subcontracting is often unclear. The interpretations given by academics and practitioners with the framework of the Subcontracting Act, can be summarized as follows: while “Supply of Labor Subcontracting” refers to a request for the simple and repetitive provision of labor, “Knowledge and Information-related Products Creation Subcontracting” indicates a request for the creation of creative deliverables. The interpretation of the Japanese Subcontracting Act suggests the same. The Korean Fair Trade Commission’s Notice on Knowledge and Information-related Products states that “outsourcing labor for the creation of knowledge and information-related products” falls under the creation of knowledge and information-related products creation subcontracting, which has deviated from the limits of delegated legislation. In particular, the Subcontracting Act provision that delegates the definition of labor to be outsourced to the Korean Fair Trade Commission’s notice makes it difficult to predict which industries will be subject to regulation based on the wording of the law alone, which may raise the issue of comprehensive delegation legislation. In fact, the labor notice also covers advertising and performance industries, but it is difficult to predict from the wording of the law. In practice, there is a controversy over the scope of the service notice, which broadly defines the commissioning of editing, development, recording, and filming of advertisements and performances as a service commission, including cases where a broadcasting company commissions a video camera shoot from its own studio. It is desirable to revise the notice to meet the criteria of “simple and repetitive labor/creation of creative results” and to revise the wording of the delegation clause of the Subcontracting Act to allow a rough estimate of the industries subject to regulation. In the long term, it is necessary to identify the actual abuse of the dominant position in the service sector and to re-select the industries subject to regulation. The issue of overlapping regulations with individual industry regulations also needs to be addressed. In particular, in the case of knowledge and information products, one should be cautious to expand the scope of service outsourcing indefinitely, as they may themselves constitute “Technical Data”.