파견과 도급의 구별기준에 관한 독일과 한국의 판결 비교

Abstract

Making a distinction between genuine (or legal) subcontract and so-called disguised subcontract is a highly complex matter. Considering that subcontracting is a traditional and legal form of work in the modern economy system where labor is specialized and that employers have right to subcontract, utilizing outside labor should not be interrupted. subcontracting usual tasks that were usually conducted in the workplace could be carried out by subcontract workers if the structure of command and share of risk are clearly formed in the way of subcontract. Therefore one should not illegalize all types of subcontract. Also current regulations do not normatively support the argument that dispatch employment of subcontract should not be utilized for usual tasks. The strict requirements of the Temporary Work Act and the duty of making direct employment relationship between employer and employee in the case of violation of the act clearly limit the freedom of contract to a considerable extent. If the Temporary Work Act sets a broad scope of dispatch employment even when the parties to the subcontract wished to specialize the labor, it can leads to arbitrary judgement damaging legal stability. Thus, only construction in conformity with the Constitution on normative concept of dispatch employment can justify the legal effects of the Temporary Work Act. In this context, this paper examined the standards that Korean courts could use to reasonably distinguish dispatch employment and subcontract on a basis of recent decisions of German Federal Labor Court(BAG). BAG does not limit in-house subcontracting in range and approves a contract as a legal subcontract as long as the employer command the employee and the aim of contract and the relationship of burden of risk are not out of the nature of subcontract contract. In contrast, Korean Supreme Court tends to distinguish between dispatch employment and subcontract based on the form of working, details of work, means of work putting too much importance on phenomenal facts. The paper marks this point as the difference between decisions of German courts and Korean courts. At the same time, an important question of how to protect workers put to subcontract remains to be dealt with in harmony as future challenges in making legislation policies.