하도급관계에서 비정규직 문제— 하도급법상 제재와 인센티브 활용을 통한 해법의 모색 —

Abstract

The Subcontract Act (hereinafter, the “Act”) guarantees the contractual rights of subcontractors by overseeing and sanctioning unfair subcontracts. In these days of deepening bi-polarization, the fact that unfair subcontracts persist implies the ineffectiveness of the enforcement of the Act. In order to correct this situation, it is necessary to strengthen sanctions over unfair subcontracts for effective enforcement while also introducing non-regulatory tools. A new scheme can be designed by establishing an incentive system that mitigates certain portions of sanctions (which will become more stringent within a range that does not infringe on excessiveness). Incentives need to be structured to make expected gains bigger than expected losses when complying with the Act or to reward model (or best practice) terms of subcontracts. A properly designed system of incentives should be able to promote compliance and be flexibly used to induce policy goals such as enhancing the productivity or profitability of subcontractors (directly related to the legislative goals of the Act) or solving problems of indirect employment (indirectly related to the legislative goals of the Act). Issues related to contingent (contract) jobs and indirect employment have been generally approached by strengthening labor regulations and expanding self-regulation with a focus on the company and employees from a labor law standpoint. But this approach also generates side-effects resulting in employer resistance or reduction of the number of regular employees. Therefore, the author argues that it would be more effective to find solutions with the help of the Act and Unfair Trade Practices Act (in addition to labor laws) since these Acts strive to improve the business performance of subcontractors from a company perspective. Such an approach would mitigate the trend of reducing labor costs by relying on subcontracts (which tend to utilize indirect employment) and promote productivity enhancement of subcontractors. For these purposes, it is necessary to change the nature and direction of enforcement of the Act. First of all, the enforcement and deterrent effects of the Act need to be strengthened to ensure the contractual rights of subcontractors. At the same time, there must be measures to enhance the understanding of principal contracting companies that there are limits to increasing profits by reducing labor costs. Measures to create understanding that subcontractors are partners in enhancing performance also need to be implemented.