구 파견근로자보호 등에 관한 법률에서 고용간주규정의 위헌 여부

Abstract

From the discussions so far, the employer has an unlimited interest to have the at-most freedom of business decision making powers from the perspective of fundamental right in the Constitutional Law, Article 10, 15, and 23 (Combined with the freedom of property right and economic activity based on the right of freedom to act, derived from the right to pursue happiness and the freedom of occupation), whereas the employee demands the right of protected existence of employment relation from the Article 15 and the Article 32, paragraph 3 of the Constitutional Law (the right to keep the chosen job). The critical point here is that the direct right of the protection of employment (to keep the job) cannot be driven from the freedom of occupation and the obligation to protect the fundamental right in the Article 15, the right to work in the Article 32 and the clauses of welfare state and the Article 119 paragraph 2 of the Constitutional Law. Therefore the Constitutional law does not request the absolute protection of employment. Furthermore the legislative aspect of the labor law should always respect the constitutional limitation of fundamental right of the socio-economic policies. In such the cases, the legal limitation of the business activities in the business entities, the business operation essence is the self-autonomy in the labor supply. The law that excessively limit the business entities from free labor supply decisions, could be violating the essence of business operation. Since the freedom of business operation including the labor supply is the protected fundamental right from the Constitutional Law, the business decision makings should pertain self-autonomy. The inevitable premise of the business operation is the business decision making based on its ownership. If freedom of such decision making is not permitted, the operation of business itself would become impossible. The former clause of the legal fiction of the employment bears the issue of unjustifiability and over-restriction as it violates the freedom of essential business right. The former clause of legal fiction of the employment seriously limit the freedom of the decision-making power of the business operations by violating the self-autonomy power in recruiting decision makings of “whom at what condition” via ex parte presumption of direct employment. Judging whether the clause of legal fiction of employment corresponds to the anti-overrestriction principle in the Constitutional Law, it should be considered unconstitutional from the perspective of the principle of “best method”, “proportionality” and “least restriction”. The former clause of the legal fiction of employment did not stipulate the specific condition of the legal fiction of employment. This means that although there should be concrete employment contracts between the user company and the temporary work agency, and temporary work agency and agency worker in order to fiction the direct employment between the user company and agency workers, it was ambiguous under the former law. Especially, the legal obligation of the direct employment condition of the user company for the agency worker is certainly unpredictable. The fact that the present Act on the Protection, etc, of Temporary Agency Work’s fixes the direct employment condition for the user company and agency workers (the article 6 paragraph 3) could be also an clear evidence for the legislative defect of the former law to violate the doctrine of void for vagueness.