근로자파견법상 고용간주조항의 재검토

Abstract

Employment considering article in worker dispatching law has a legislative purpose to prevent business of dispatching from extending and popularizing by compelling employers to observe duty of direct employment. Meanwhile, it is regarded dispatched worker as employed worker when dispatching period is over 2 years, employers should make their option to terminate the dispatching contract or employ the dispatched worker and maintain labor relationship. This situation can also causes employment instability to dispatched worker. Although it is a disputable issue, it should be maintained direction to accomplish duty of direct employment because the direct employment is the aim of labor law. Even though the reason why employment considering article was revised to direct employment article in 2006 is not clear, we can not conclude that the reason is to correct unconstitutionality of employment considering article. As a sanction article against illegal dispatch is enforced, in my opinion, the purpose of the revision is that labor and management should make ‘the content’ of labor relationship clear in accordance with labor contract rather than ‘the effect’ of employment considering. Also, in revision of worker dispatching law in 2012. 2. it imposed a duty of direct employment on employers without reference to employment period when it comes to illegal dispatching case. With this, it can be concluded that a legislative settlement about a duty of direct employment to employers is fulfilled.