근로자성의 증명책임에 관한 일고찰

Abstract

This paper aims to examine the presumption of worker status from the perspective of the worker's burden of proof, and in particular, the relaxation of the burden of proof, focusing on the de facto presumption. The legal presumption is subject to legislative theory because it is literally based on the law, but the de facto presumption can be made possible by interpretation without legislation, so it would be beneficial to examine it in the current legal situation. To this end, this article first examines the general theory of the burden of proof and the burden of proving worker status (Ⅱ.), then examines the pioneering research work in Korea on the distribution of the burden of proof regarding worker status (Ⅲ.), and then examines the California Supreme Court's Dynamex decision, which is a representative case on the distribution of the burden of proof regarding worker status (Ⅳ.). Finally, we conclude by summarizing the author's opinion based on the above review (V.). The results of this review can be summarized as follows. First, being a worker under labor law is a requirement that can be proven through value judgments deduced from various social facts. Therefore, the burden of proof should be appropriately distributed between the worker and the employer for facts that negate worker status and facts that support worker status. Second, in order to equitably distribute the burden of proof between workers and employers, the criteria for determining worker status should be simplified and systematized to ensure legal stability. Third, simplifying and systematizing the criteria for determining worker status means identifying and systematizing as simply as possible the facts that negate worker status and the facts that support worker status as required facts (key facts). It would be desirable to simplify the test to three elements, A, B, and C, of the ABC test set forth in the Dynamex decision. Fourth, the burden of proof should be reduced by a de facto presumption, not by allocation of the burden of proof. The rationale for reducing the burden of proof by a presumption of fact can be found in the social and economic policies of protecting workers and ensuring fair competition.