위장도급인 사내하도급에 대해 직접적인 고용관계를 인정하는 판례 법리

Abstract

This article argues two the Supreme Court cases that recognized the intra-subcontracts as direct employment due to camouflage outsourcing. The intra-subcontracts as camouflage outsourcing are classified and recognized the implied employment relation or the illegal dispatch employment relation at that case laws. And there is a lawful intra-subcontract another. So the standards are necessary that are classify three categories. In Hyundai Mipo Dockyard case, the Supreme Court announced that the implied employment relation is recognized the business proprietor, being a contractor, and the employees, hired by subcontractor. The Court considered that (1) the contractor used the real powers about hire, promote and discipline to that employees, (2) he used directly the powers about order and supervision, (3) he used the powers of influence about the employment conditions, and (4) the subcontractor did not prepare the independence and self-support facilities for management. And in Yesco case, the Supreme Court announced that the intra-subcontract, which was the illegal dispatch employment, was applied the direct employment provision in the old law, the Dispatched Employee Protection Act. In the case, the Court did not judge the standard which classifies illegal dispatch or lawful intra-subcontract. In my opinion, if the contractor used directly the powers about order and supervision, the relations should be recognized as not subcontract but dispatch. About intra-subcontract, there are many cases recognised as camouflage outsourcing. I expect developments of case laws about the classifying standards in the concrete.