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Abstract

The industrial structure of current times aims to achieve mass production and consumption, and corporations are actively retaining a form of employment where corporations retain services of employees employed by a third party, without entering into employment agreement directly with the employees, to reduce cost, be able to flexibly manage human resource and, ultimately, maximize profit and flexibly respond to rapid changes in business environment. Among many forms of employment where corporations retain services of employees employed by a third party is ‘on-site subcontracting,’ where a corporation enters into a subcontracting agreement with a third party and employees of contractor carry out the subcontracted work under such subcontracting agreement, using equipment, facility and tools of the user company in the premises of the user company. When the employees of contractor (i.e. the contract workers) are injured while carrying out the subcontracted work in the user company’s premise, they may not only claim for damages under labor laws and Civil Act against their direct employer, but also make certain judicial claim against the user company which has the control over the risk of work-related injury (such as by providing premise, facility, equipment, etc. for the subcontracted work to be carried out). When the contract workers suffer from the work-related injury, the contract workers may, against the user company (which is in no contractual relationship with the contract workers), exercise their right to claim for compensation for damages caused by civil liability for tort (as prescribed by Article 750 of Civil Act) committed by the user company. Depending on the specific fact, they may claim for: employer’s liability (under Article 756 of Civil Act, which is applicable when the user company and the contract workers are practically under relationship of employment); contractor’s liability (under Article 757 of Civil Act, which is applicable because there is a subcontracting agreement between the user company and the employer of contract workers); and liability of possessor, owner or structure (under Article 758 of Civil Act, which is applicable because the contract workers used facility, equipment and device the user company provided in the user company’s premise.) Here, what is important is that whether the user company (which is in no contractual relationship with the contract workers) can be legally held liable for contractual liability, when no relationship of statutory liability caused by violation of Occupational Safety and Health Act or tort under Civil Act is recognized or the injured cannot practically be relieved exclusively by such recognition. By applying contract theory to the subcontracting agreement between the user company and contractor, which has the protective effect of the third party, the scope of persons subject to the user company’s obligation to assure workplace safety can be expanded to include the contractor, as well as the contractor’s employees. By doing so, the contract workers will be able to make applicable claim for the user company’s breach of subcontracting agreement when the user company violates its obligation to assure workplace safety.