프랜차이즈 가맹점주의 노동법상 근로자성 여부

Abstract

As a result of examining the operations of the franchise, it could be confirmed that the relations between franchiser and franchisee are dependent and that the relations between franchiser and franchisee workers are dependent, too, although indirectly. However, even if the relations between franchiser and franchisee workers are dependent, the ‘dominant-subordinate relationship’ between them may be different from the ‘subordinate labor relationship’ covered by the labor law. Some business types of the franchise show that the franchisees are organized into the franchiser to be dependent on the latter economically. However, the extent of such dependency differs depending on the business types of the franchise, while all the franchisees should not necessarily be protected by the labor law. In an interpretive view, the franchisees may be admitted as the workers specified by the labor law when their personal and economic dependency and the need of social protection are taken into consideration in overall terms. First of all, in order to admit their status as workers in Labor Standards Act, users’ considerable command and supervision as well as the temporal and spacious restraint should be admitted in overall terms according to the judicial precedents. As long as the franchisees’ position as independent entrepreneur is not lost, their dependency on their franchiser cannot well be admitted despite their franchiser’s domination of them. However, in case the franchisees are operated like ‘sales people’ or ‘branch manager’, their economic independence may be deemed ‘not secured’, while their dependency is worsened, and then, they may well be regarded as the employees in Labor Standards Act. In contrast, since the recent judicial precedents tend to consider the economic and organizational dependency as important conditions for admitting the status of employees, while mitigating the criteria for dependency, it is more possible that the special type workers could be admitted as employees in the Union and Labor Relations Adjustment Act. Hence, such special type workers as ‘one-man franchisee’ or ‘non-store franchise’ may well be regarded as employee in the Union and Labor Relations Adjustment Act in consideration of the current judicial precedents. Here, the scope of dependency can be set limitedly with the criteria for the need of the social protection.