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‘Subcontract work’ has a long history and has become settled as one of the types of employment in Japan. While ‘subcontract work’ in civil law fundamentally aims at ‘completion of duty’, it has been diversified into simple labor by diversifying employment types. By reflecting these situations, the Worker Dispatching Act was established in 1985. However, further issues such as classifying between subcontract and dispatched work have emerged. To cope with newly emerging problems, the Japanese government (formerly the Ministry of Labor) established ‘criteria for classifying dispatched work and subcontract work’ (Notification no. 37). According to this notification, when an employer is not able to keep ‘independence in personnel management’ and ‘independence in management’ as a business owner, the work can be regarded as ‘dispatched work’ (in other words, disguised subcontract work). However, the criteria for this notification were too severe, and much criticism of it arose. In the Japanese manufacturing industry, there are a lot of cases where workers from original contract and subcontract companies work together at the same places, making it very difficult to meet all the requirements presented by the notification for this kind of in-house subcontracting work. Hence, in 2009, the Japanese Ministry of Health, Labor and Welfare presented ‘Questions and Answers’ regarding Notification no. 37, and lessened the criteria for classifying dispatching and subcontracting work. The main contents of ‘Questions and Answers’ offer specifications and guidance on technique through daily conversations between workers from original contract companies and subcontract companies, the responsibility of the field manager, the mix of workers from original contract companies and subcontract companies, the use of facilities in the company, the use of installation/equipment, and so on. In particular, the ‘Questions and Answers’ for that notification were enacted to solve the problems of disguised subcontract work that have been occurring in the assembly-line system, where the original company’s workers and the subcontract company’s workers are mixed together when working in the automotive and shipbuilding industries. Therefore, the criteria for classifying dispatching work and subcontracting work in ‘Questions and Answers’ have been mitigated compared to the criteria in the original Notification no. 37. When considering similar situations in Korea, similar problems of in-house subcontracting work have been emerging. However, as the Korean court presented in the case of POSCO, the tendency to deny subcontracting work in the assembly-line system is strong. This judgement is based on the interpretation of civil law; however, it can be criticized that the judgement did not fully reflect the actual labor situation in which employment types have been undergoing drastic changes due to industry restructuring. In that sense, this research can provide implications to resolve problems related to in-house subcontracting work in Korea.

목차

Ⅰ. 문제제기
 Ⅱ. 철강업의 생산공정 및 인력활용 현황 및 특징
 Ⅲ. 철강업 사내하도급을 둘러싼 법적 논쟁
 Ⅳ. 일본 철강산업과의 비교법적 검토
 Ⅴ. 결론 및 시사점
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키워드

일본 도급 파견 위장도급 불법파견 사내하청 도급과 파견의 판단기준 Japan Subcontracting Dispatched work Disguised Subcontracting In-house Subcontracting Criteria for Judgment of Subcontracting and Dispatched Work

저자

• 이정 [ Lee John | 한국외국어대학교 법학전문대학원 교수 ]

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