직접고용간주 규정과 불법파견의 법률효과 - 대법원 2008. 9. 18. 선고 2007도22320 전원합의체 판결을 중심으로 -

Abstract

The Supreme Court made a special decision regarding to「Act On The Protection, Etc., Of Temporary Agency Workers」at The Yescos Case(case no. 2007du22320) in Sep. 18th, 2008;First, whether the section 6③ of the Act On The Protection, Etc., Of Temporary Agency Workers providing direct employmet could be applied for illegal temporary agency work? Second, what form of employment would be arising out of the effect in the section 6③?In these matters, The Supreme Court held that the section 6③ could be applied in illegal temporary agency work, and an using-employer should employ a temporary agency worker directly. And it can be allowed that the using-employer make use a agency worker's service beyond the two years period in changing a employment agency for new one, if the Act have the purpose to maintain the job of the employee. However, The Supreme Court could not review the legal effect in dispatch exceeds other various forms of illegal temporary agency work and the legal relationship between the three parties(dispatching-employer, using-employer, dispatched-employee) after regarding direct employment. So fundamental problems that may result from illegal temporary agency work eventually were not resolved. These problems are due to unclear and incomplete structural Act. thus, it is necessary to amend the legislations regarding illegal dispatch of the Act On The Protection, Etc., Of Temporary Agency Workers. Therefore, in the future the legal effects on various forms of illegal temporary agency work and the legal relationship between the three parties after regarding direct employment should be be defined in the legislations. On the other hand, a principle of the direct employment by the interpretation of the labor law as the legal effects on all forms of illegal temporary agency work claims that the direct employment contract relations between using-employer and agency worker has been established. But even though there is no employment contract between the parties, the agenda that direct employment relation between the parties was formed could be criticized for viewing opinions. In order to be accepted without objection, in this point of view will clearly present what is the content of the employment that exist in the direct employment contract relations between the three parties. Therefore, in this regard, more detailed and in-depth academic research will be needed.