위장도급의 준별과 그 법적 효과

Abstract

Primarily, any legal relations under a contract for work shall be considered as nominal if it meets the following two conditions: A. a person who ordered the work exercises the authority to order/command employees of independent contractor under such a contract; and B. that contract lacks distinctive characteristics as an authentic contract for work. Criterion A is divided into two cases as follows: i) a person who ordered the work exercises the direct and specific authority to order/command independent contractor’s employees, and ii) he/she exercises the indirect and comprehensive authority to order/command independent contractor’s employees when incorporating them into his or her own management organization or business organization. Moreover, the types of the incorporation may also be divided into two subcategories: one regarding performance of works; another regarding the authority of personnel & organization management; a third regarding economic spheres such as wages and allowances. Meanwhile, a nominal contract for work may be classified in accordance with whether the substantiality of an independent contractor exists or not. In the case that there exists unique and independent substantiality of an independent contractor, the contract will be classified as a nominal contract for work with trilateral employment relations, whereas the contract will be classified as a nominal contract for work with bilateral employment relations if there is no such substantiality under the contract. Especially, in the case of a nominal contract for work with trilateral employment relations, the contract can be subdivided into two cases, according to whether there exists an employment contract or relations between an independent contractor and his or her employees or not: i) a nominal contract for work deemed as dispatch of workers in case of the existence of an employment contract; and ii) a nominal contract for work considered as supply of workers in case of the absence of an employment contract.