위법파견의 법률효과

Abstract

Although it has been 15 years since the Dispatched Workers Act was enacted, still interpretation of some parts of the act remains unclear. Since the act wasn't introduced after thorough legal examination of various expectable cases and lacks in-depth theoretical discussion, it is fair to say the courts are bearing burden of interpretation of the law on each case. Especially, the legal effect of illegal dispatch is a very important legal issue. Nevertheless, there haven't been enough research and discussions on its requirements and effect even though the number of cases of illegal dispatch is increasing. This article mainly argues that the direct employment relationship between user company and workers established based on effects of illegal dispatch is incomplete and has a lower priority than the contract between dispatch company and workers unless such contract becomes invalid. Even if we can deny the effects of dispatch contract by actively interpretating the Dispatched Workers Act, the exchange of work and the wage between dispatch company and workers cannot be annulled. Therefore, it is appropriate to regard the relationship between user company and workers as virtual employment relationship with defects until direct relationship is settled considering labor law and contract orders as a whole. At the end, this article also points out that the nature of obligatory employment and consequences of default ought to be controversial and then briefly presents ways of legislative improvements with relating theories.