전출과 근로자파견

Abstract

This study examined the legal characteristics and items of transfer employment relation and covered the distinction with laborer dispatch. Employee transfer refers to an interchange of manpower between affiliated companies of a corporate or subcontract companies. While such interchange of manpower contributes on reducing management expense and enhancing management efficiency, it also contributes on the employment stability in the aspect of enhancing laborer’s occupational ability and relieving over-manning. In such sense, transfer is an important measure in forming the labor market within the corporate. This study interpreted the legal characteristics of transfer employment relation as a partial contractual relationship (double employment relation) and examined the distribution of rights and duties toward laborer between original employer and transferred laborer employer by focusing on the wage payment duty and disciplinary action. As there will be various controversies over the working conditions of transferred laborer and continuous labor relationship after getting transferred, it is necessary to clarify the objective standards as supplements and to establish the legal principles of transfer instead of leaving it to liberty of contract of the parties concerned. This is the task that future labor act needs to handle. Meanwhile, in regard to transfer as a personnel transfer between companies, some say that the dispatch act shall be applied for laborer transfer’s formal resemblance with laborer dispatch. However, the purpose of dispatch act is to promote the appropriate management on laborer dispatch business carried out as ‘work’ and to protect the dispatched laborer working at relatively poor labor condition under unstable employment status. As comparative study on German and Japanese researches showed, ‘carried out as work’ suggested as requirement of laborer dispatch business generally refers to profitability or refers to a case where the laborer dispatch is set as the main business purpose. Thus, in application of dispatch act, the legislative purpose of dispatch act needs to be considered thoroughly.