위법한 파견근로와 직접고용간주

Abstract

The Supreme Court Decision dealt issues with regard to the “dispatched workers” and its holdings are as follows; The former Protection, etc. of Dispatched Workers Act( “the Act” hereafter), which was amended by the Law No. 8076on December 21, 2006, defines the term of “dispatching a worker” under Article 2 (2) as that “a dispatching employer, a staffing agency, hires a worker and maintains the employment to dispatch the worker to work for a borrowing employer following directions from the borrowing employer under the worker dispatch contract.” In addition, according to Article 6(3) of the Act, “the borrowing employer is regarded to become a hiring employer if he/she directly has commanded and has ordered the worker and has continued to be provided the dispatched worker's service more than 2 years.” Article 6(3) of the Act above is to be applied to not only the so called legal dispatch but also the illegal dispatch under the premise for exceeding two years (in this case, the contract term of the employment contract should be disregarded by the court). I believe that this judgment interpreted Article 6(3) of the Act fully based on literal terms and the purpose of legislation, the stable employment. The judgment could be a precedent to address prior inconsistency among the lower court's decisions setting a new standard and contributing to the actual protection of workers.