파견법상 사용사업주 직접고용의무, 파견사업주와 파견근로자간 근로계약에 대한 검토— 대법원 2022. 1. 27. 선고 2018다207847 판결과 관련하여 —

Abstract

The recent Supreme Court ruling on January 27, 2022(2018DA207847) ruled that if an user company directly enters into an employment contract in accordance with the employment obligation prescribed in the Act on the Protection, etc. of Temporary Agency Workers(APTAW), there should not be a fixed period in this employment contract. This article reviews the issues arising therefrom while understanding the meaning of the above judgment of the Supreme Court. Those issues are mainly related to 1) the reason that the employment contract according to the user company's direct employment obligation should not have a fixed period; and accordingly 2) the issue around the employment contract between the temporary work agency and the temporary agency worker. Regarding the first issue, the legal effect on employment contracts exceeding two years under the Act on the Protection, etc. of Fixed-Term and Part-Time Employees between temporary work agency and the temporary agency worker should be comprehensively understood, and accordingly, the employment contract in accordance with the user company's direct employment obligation should not have a fixed period. Regarding the second issue, since various problems arising therefrom continue, it seems preferable to return to the direct regulation deeming directo employment should be chosen rather than to make efforts to solve the problem through interpretation based on the current law.