플랫폼 노동자의 근로자성 판단 법리에 관한 고찰 - 비가시적(非可視的) 통제 양태와 해석론적 접근을 중심으로 -

With the rapid development of Information and Communications Technology (ICT) in the 21st century, along with the widespread adoption of internet-based services such as social networking platforms, the sharing economy and digital platform labor built upon it have expanded rapidly. The article focuses on locally based platform workers who provide face-to-face services in offline spaces yet are not considered as employees but as dependent self-employed workers, thus falling into a regulatory blind spot. Platform labor diverges from traditional labor in its purpose of labor, contractual arrangements, and modes of control. As platform labor does not conform to the current labor law framework based on conventional employment models, significant challenges arise in securing platform workers’ legal status and ensuring adequate protection. The current legal framework distinguishes between ‘workers’ and ‘employees. The term ‘worker’ broadly refers to all economic agents who supply their labor to sustain their livelihood, whereas ‘employee’ is separately defined in the individual labor statutes enacted on the basis of the Constitution. Once an individual is recognized as an employee under the Labor Standards Act, they become entitled to statutory protections such as minimum wage, severance pay, and other substantive benefits. Thus, the determination of employee status for platform-based workers becomes a pitoval issue. The Supreme Court places primary emphasis on personal subordination when determining employee status, focusing in particular on whether management control is exercised by the employer. Although platform enterprises are formally excluded from employer status and framed merely as intermediaries, they in fact function as employers by utilizing algorithmic forms of control over workers. Within academia, two principal approaches exist regarding the criteria for determining subordination: the control theory and the management theory. The control theory bears doctrinal significance as it reflects certain characteristics of diverse forms of labor. However, it has been criticized for overly simplifying the empirical realities of work. In contrast, the management theory evaluates subordination based on indirect and non-visible forms of supervision, including algorithmic evaluation, customer-rating system, and other data-based monitoring mechanisms. Such a framework is significant for capturing the dynamics of platform labor. The Supreme Court currently places primary emphasis on personal subordination, reflecting the principle of substantive assessment under which the Court examines the actual subordinate relationship rather than the formal terms of the contract. However, this substantial subordination is largely built around direct supervision and command, and thus fails to fully subsume indirect modes of control. Notably, in the Tada-Driver case, even when the same legal doctrine is applied, the determination of employee status diverges between the trial and appellate courts depending on the analytical perspective adopted. This article highlights the limitations of both the legislative approach and the control theory, suggesting an interpretive approach that combines the management theory with the economic dependency criterion. The management theory offers an analytical basis for explaining the indirect forms of algorithmic control, whereby platform workers appear to exercise autonomous choice but are in fact regulated by algorithmic control designed by the platform. California’s ABC test, which captures such forms of indirect supervision, demonstrates the necessity of adopting the management-theory-based approach and its coherence with contemporary labor realities. In addition, the incorporation of the economic dependency criterion allows consideration of platform workers’ reliance on a single platform for their income, the absence of business-based independence, and the loss of price-setting authority. The U.S. ‘Economic Reality Test’ likewise reveals the need for an employee status interpretation based on economic dependency within the platform-labor environment. Thus, the article aims to demonstrate that such an interpretative approach can secure a consistent judgement of employee status for platform workers and facilitate the substantive protection of their rights.