근로자파견 판단기준 및 방식의 개선에 관한 연구

Abstract

As a means to achieve ‘flexibility of the employment market’, the Act on the Protection, ETC. of Temporary Agency Workers(the APTAW) was created to function as a tool to enable ‘indirect employment’ in Korea’s legal system, which only permitted ‘direct employment’. However, This unrestricted permit of ‘indirect employment’ was undesirable considering the domestic labor market in which protection devices for workers were limited, so the APTAW was enacted in such a way as to stipulate regulatory provisions for the protection of temporary agency workers. And for that reason, when interpreting and applying the provisions of the APTAW, we should consider the two purposes of the APTAW, which are ‘Smooth supply of manpower through securing flexibility in the employment market and proper operation of the dispatch business’ and ‘determination of working conditions and promotion of job security and welfare for dispatched workers following worker dispatch’. But our court has relatively emphasized only the worker protection aspect in the application of the provisions of the APTAW, and we can easily confirm this fact through the court ruling and the judgment criteria and method used by the court on the case which the substantiveness of temporary placement of workers was an issue (the so-called fake subcontracting case). The criteria used by the court to judge the substance of temporary placement of worker is excessively abstract, or it is just a way to compare the signs of subcontracting and temporary placement of workers to distinguish which is closer to, not to determine whether or not the substance of temporary placement of workers is in place. The method used by the court to judge is also only a comprehensive judgment of several types of signs, and it does not give predictability and avoidability to the public, who are perpetrators. The APTAW is not simply a statute that stipulates rights and obligations according to civil legal relationships, but it is a criminal law for the purpose of criminal punishment. Therefore, the provisions of the APTAW and thejudgment standards and methods of the court are not valid as they violate the constitutional principles of criminal justice and clarity. In conclusion, from now on, when determining the substance of the legal relationship is temporary placement of worker, first, the concept of temporary placement of worker must be clearly established, second, the requirements specified according to the concept, and then the method of examining whether or not the requirements are met should be used. And in the process, the contents corresponding to the signs or elements of the contract should not be used as a criterion for judgment, and only the criteria corresponding to the signs of temporary placement of worker should be used as the criterion to examine the substance of the specific legal relationship.