위탁용역업체의 변경과 근로관계의 승계 — ‘고용승계기대권’에 대한 비판적 검토를 중심으로 —

Abstract

The change of the employer due to the replacement of the consignment service company in the business consignment relationship is not based on a legal act between the transferor and the transferee, that is, a business transfer contract, as in the case of transference of business under the Commercial Act. Therefore, it is unreasonable to apply the principle of succession of employment relationship as it is. Until now, the majority of judicial precedents and theories have not identified cases where a business is actually transferred due to a replacement of the consignment service company as transference of business. As a result, the employment relationship of the workers belonging to the existing consignment service company was not succeeded to the employer of new consignment service company. However, in recent years, a number of rulings have been found as follows; A judgment judged that an “implicit business transfer contract” was established between new and old employers of consignment service companies, mainly in the lower court; A judgment acknowledging that an agreement for the succession of existing workers' employment relationship has been concluded between the contractor and the employer of a new consignment service company, namely a contract for a third party; A judgment judged that the employment relationship of existing workers is succeeded by the practice of succeeding the employment of workers, etc. Labor relations are one of the representative areas in which disputes must be resolved based on complex facts. Therefore, the legal principles for resolving each dispute must be logical and consistent for legal stability and predictability of the parties. Nevertheless, it cannot be agreed to try to solve the problem of succession of labor relations in the event of a replacement of the consignment service company through ‘right to expect employment succession’, which can theoretically raise many questions. Therefore, this study pointed out the problems of the 'right to expect employment succession' through a method of analyzing various previous attempts and reviewing each issue. At the current stage, it has been confirmed that the 'contract theory for third parties' is the most persuasive. In the future, it is expected that legislative alternatives with sufficient validity and effectiveness will be prepared from the perspective of harmonizing the two values of corporate management necessity and worker protection.