직업안정법상 ‘직업’의 재검토 - 근로자 개념을 중심으로 -

Abstract

This Paper aims to review a meaning of an ‘employment’ or a ‘worker’ under the Employment Security Act(hereafter ‘the Act’). The Act is to strive for the employment security of every worker by means of giving him/her an opportunity to find employment in which he/she may develop and display his/her own ability. The primary end of this Act is also to protect workers who seek employments or jobs in a labor market. While the Act uses several words concerning with an employment or a worker such as “job placement”, “recruitment”, “labor supply services”, it has no definition of an employment or a worker. The courts have ruled that an employment under the Act should be a job of a worker under the Act, not an independent contractor. Recently the supreme Court have decided that a worker under the Act is same as an employee under the Labor Standards Act(hereafter ‘the LSA’). The courts, as a result of the case law, has excluded many of economically dependent workers, who work by independent contract of/for service in formality but have the same or similar degree of personal or economic subordination to their ‘employers’ as normal employees, from protections of labor law including the Act. According the case law, economically dependent workers have been judged as the self-employed or independent contractors by application of ‘control test’ made by the supreme court on December 9, 1994 and on December 7, 2006. The case law concerning as the meaning or coverage of a worker under the Act can not accord with the propose of the Act and the changing situations in a labor market. The primary purpose of this Act is to protect workers who are in adverse condition in a labor market so that most of economically dependent workers should be covered the protections under the Act because they have the same economic disadvantages in a labor market as an employees under the LSA.