위법한 근로자파견의 법률효과에 관한 법적 쟁점과 평가 - 대법원 2008. 09. 18. 선고 2007두22320 판결을 중심으로 -

Abstract

There are some legal issues in this decision of supreme court as follow. First, whether the section 6(3)(before repealed) of the Employment Agency Worker Protection Act must be applied to a employment agency work, even if the work is violating the Act. Second, whether, in case of such unlawful agency work, the agency employee can be regarded as a regular employee of the client (namely, the user employer) just at the end of two years like a lawful agency work under the Act. Otherwise, whether the unlawful work should be regarded as a regular employment relations with the client at the beginning of the legal relations Third, whether the client can take into a agency employee' service in changing one employment agency to another employment agency beyond the period of two years provided by the Act. Fourth, whether it can be regarded that the employment relations is directly established between the employee and the client at the beginning of the service, if the employment agency of a agency employee have been changed to another agency in appearance, but the employee is working in same workplace as before. Finally, if the section 6(3)(before repealed) can be applied, then, what is the legal nature of the employment contract between the agency employee and the client? In conclusion, the direct employment relations should be established between the client and the agency employee. Because when a employment agency work is defined as unlawfulness, then, the agency employee can be protected for the purpose of the Act. And it can be allowed that the client make use a agency employee's service beyond the two years period in changing a employment agency for new one, if the Act have the purpose to maintain the job of the employee. Furthermore, the employment contract between the client and the agency employee under the section 6(3)(before repealed) can be regarded as a regular employment without a term. It is a reasonable interpretation for the purpose of the Act and the legal system.