파견노동 및 현행 파견법의 문제점과 법적 과제

Abstract

Temporary work is based on the legal fiction that it is possible to separate the use and employment of workers. Capital maximizes profits through this form of employment and the economic risks are passed on to workers. The essence of temporary work is a de-normalization, i.e. making useless law and order govern the wage labor relationship. The temporary workers fall into the trap of transferring responsibility of both the employer and the hirer, which makes them unable to exercise even the right to organize and brings about the risks of employment insecurity and harsh working conditions. The current law, which legalized the temporary work, has been hastily made to meet the needs of the capital in the name of “labor flexibility.” Therefore, the room of numerous illegal activities and breaking the law was born. Also is made more obscure even the attribution of legal responsibility by blurring the traditional distinction between the employment contract and the subcontracting. Due to inadequate criteria and lack of consistency, cases of the Supreme Court regarding the distinction between temporary work and the subcontracting is unable to properly regulate the illegal subcontracting of ‘chaebols’. Furthermore, the new bill of the government party is headed in the wrong direction that will justify regulating illegal temporary work. In order to eradicate the illegal temporary work and to establish a sound employment order, a prospective reform of the Labor Standards Act based on the principle of direct employment and the recovery of the public nature in employment service are necessary.