Earticle

초록

영어

It is clear in theory to distinguish between the constructing contract and the labor contract. However, in practice, very difficult. because the case that the elements of the constructing contract and the labor contract is mingled are many. Because of issues like this, Finding a clear standard of distinction is very difficult. the labor contract cannot really be judged by he constructing contract. the constructing contract is not the subject of labor legal regulation. Germany also is not clear discussion of standard of distinction of camouflage outsourcing. It is correct as seen in the process to continue to develop. These points, recently, has been implied well in the German precedent. Precedents and academia discovered countless subordinate "case" to determine the illegal constructing contract relationship. However, they could not find a definitive indicators. In German court, there is a case in which the provision of work tools and material is judged to be very important. However, there is also judgment of the reverse. It is not important whose working tools and materials is. Facilities of equipment's own also same. After all, even the German court, when determining camouflage outsourcing today, they have limit. If in such a case, it is better to rather admit a new type of human resources contractor relationship. it is reasonable to understand the contract itself the elements of labor and contractors are mixed. When the white and black colors are mixed, it is correct to be seen in gray as such. They have to admit the gray zone. Conventional labor law is identified as a tool for regulating the real industrial relations. However, the role of labor law in modern society, with the current regulations, it is necessary to have to concentrate on to continue to actively form a new order. it is necessary to define in detail what labor are legally required protection, also it is possible.This is considered a practical approach of problems that we can narrow down the divergence between reality and law philosophy of labor that we face.

목차

Ⅰ. 문제의 소재
 Ⅱ. 외부인력 활용에 따른 장단점을 고려한 경영판단 필요성
 Ⅲ. 독일에서의 위장도급 판단 기준에 관한 입법상의 흠결(Regelungslücke)
 Ⅳ. 독일 판례 법리의 발전
 Ⅴ. 독일 학계에서의 방법론 전개 및 시사점
 Ⅵ. 결론
 참고문헌
 

키워드

위장도급 파견근로관계 지시권 도급인지시권 균등대우원칙 보완적 업무영역 Scheinwerkvertrag Leharbeitsverhältnis Weisungsrecht Anweisungsrecht Gleichbehandlungsprinzip Hilfsfunktionsbereich

저자

• 권혁 [ Kwon, hyuk | 부산대 법학전문대학원 교수(부교수), 법학박사 ]

참고문헌

발행기관

간행물