파견과 도급의 구별에 관한 법리 — 대법원 2010.7.22. 선고 2008두4367 판결 및 2012.2.23. 선고 2011두7076 판결을 중심으로 —

Abstract

This paper thoroughly examines legal logics on differentiation of dispatch contracts and subcontracts reflecting a recent decision of the Supreme Court on Hyundai Motor Company case which acknowledged that workers who worked for subcontractor in the employer(user)'s workplace as a servant based on a subcontract agreement or a mandatory contract between companies are employees under a worker dispatch contract for the first time in history. In regard to defining the type of so-called in-house subcontracting, distinction of dispatch contracts and subcontracts lies on whether the subcontractor bears partial defect liability on the basis of clear legal obligations. Similarly, dispatch contracts and mandate contracts should be distinguished by whether the subcontractor independently takes command of its employees. Labor law has an important bearing on corporations in view of their needs to promptly respond to rapidly changing economic environment and to increase competitiveness in market. Therefore, applying laws based on specific phrase or expression for strengthening particular legal relations without considering context of actual matters can bring about ill effects that also exert a negative influence on labor market as a whole. The body of this paper consists of four parts. In chapter Ⅱ, the significance of in-house subcontracting and related issues in labor law were discussed in context with management rationalization, subcontracts and indirect employment. Chapter Ⅲ focused on defining legal criterion to distinguish dispatch contracts and subcontracts presenting a methodological principle which stressed the importance of the substance of the contract. Also the purpose of the Dispatched Workers Act as well as definition of dispatch and normative meanings of employer's command were discussed in chapter Ⅲ. In chapter Ⅳ, general analysis and assessment on the in-house subcontract of Hyundai Motor Company in question were presented.