Earticle

The worker dispatch means that a sending employer hires a worker and dispatches the worker to a using employer while maintaining employment relation so that the worker works in the business field of the using employer according to the worker dispatch contract. Therefore, employment is inconsistent with use in the worker dispatch relation. In the case of the intra-subcontract, a worker works in the business field of a contractor other than the business field of an employer, so employment is often inconsistent with use. In both cases of the worker dispatch and the intra-subcontract, the worker works in the business field of the using employer or the contractor. In the case of the worker dispatch, the using employer has the supervisory power as a rule. However, in the case of the intra-subcontract, the contractor has no supervisory power. Nevertheless, since the supervisory power can be variously exercised in practice, the acts of the contractor may be substantially identical to the supervisory power although these acts are not regarded as the supervisory power itself. That is, it is very difficult to distinguish the acts of the contractor from the supervisory power. The worker dispatch and the intra-subcontract are subject to different types of laws and rules, respectively. That is, the worker dispatch is subject to the worker dispatch act. However, in the case of the intra-subcontract, the employer's liability is imposed only to the employer under the labor laws, and the contractor is free from the employer's liability. Therefore, business proprietors may prefer the disguised contact, which is disguised as the intra-subcontract, in order to avoid the user's responsibility under the labor laws. After the registration of the worker dispatch act, the social issue is focused on the illegal dispatch or illegal subcontract other than the worker dispatch itself. The main problem under disputation relates to the counter-party in the employment relation of the dispatch worker. This is because most dispatch workers assert the unfair dismissal and the unfair labor practice based on the employment relation with the contactor. Therefore, this thesis will study on the legal effect and problem and legislation for protecting dispatch workers in relation to the disguised contact, which is disguised as the direct employment relation, and labor relationship in the illegal dispatch that violates the worker dispatch act.

Employment considering article in worker dispatching law has a legislative purpose to prevent business of dispatching from extending and popularizing by compelling employers to observe duty of direct employment. Meanwhile, it is regarded dispatched worker as employed worker when dispatching period is over 2 years, employers should make their option to terminate the dispatching contract or employ the dispatched worker and maintain labor relationship. This situation can also causes employment instability to dispatched worker. Although it is a disputable issue, it should be maintained direction to accomplish duty of direct employment because the direct employment is the aim of labor law. Even though the reason why employment considering article was revised to direct employment article in 2006 is not clear, we can not conclude that the reason is to correct unconstitutionality of employment considering article. As a sanction article against illegal dispatch is enforced, in my opinion, the purpose of the revision is that labor and management should make ‘the content’ of labor relationship clear in accordance with labor contract rather than ‘the effect’ of employment considering. Also, in revision of worker dispatching law in 2012. 2. it imposed a duty of direct employment on employers without reference to employment period when it comes to illegal dispatching case. With this, it can be concluded that a legislative settlement about a duty of direct employment to employers is fulfilled.

If the illegal dispatch is confirmed under the dispatch law, the dispatch law presupposes two legal effects. First, sanctions are imposed on the dispatching employer and the employer who are parties to the contract for dispatching workers. On the other hand, the employer is obliged to directly employ the employer in order to secure employment for dispatched workers. The duty of direct employment is to recognize the right to claim employment as a legal right to a dispatched worker. At the same time, when employers exercise the right to claim employment, employers are obliged to accept them. When a dispatch worker exercises his or her right to claim employment directly and the employer agrees to it, a direct labor contract relationship is newly formed between the dispatched worker and the employer. It does not take over a labor contract between a former dispatcher and a dispatched worker. In the formation of a new labor contract relationship, the principle of equal treatment should be applied. This is specified in the Dispatching Act. If the employer explicitly denies the employer's right to claim employment directly, there may be a problem of so-called violation of direct employment obligations under the act or omission. In this case, the dispatched worker may seek a judgment against the employer of the employer to substitute his intention of acceptance. On the other hand, the owner of the employer may exercise the right to demand compensation for violation of the duty of direct employment for a period of time until the execution of the duty of acceptance. If you were directly employed, the wage actually paid. If the discriminatory treatment of wages is taken as an example, the difference in wages should be compensated by the dispatching employer because the Article 21 of the Dispatching Law provides a compulsory minimum standard for the wage of dispatched workers. Employers of the employer may also be subject to penalties such as penalties as discriminatory treatment under Article 21 of the Dispatching Act. However, it can not be regarded as a liability for damages due to illegal acts. In order for an infringement of the wage bond of a third party (dispatched worker) to be regarded as illegal, very strict preconditions must be met.

The contract for work and illegal dispatch are easily distinguishable from each other, but in practical cases, it is hard to tell them. That is because of the diversity of the form of contract for work. According to the principle of private autonomy, the contracting parties can formulate various substance of contract, and this will make harder to find the differences between them. Especially the issue that separating the contract for work and illegal dispatch is related not only to the civil law but also related to labor law, therefore it is a very significant issue practically or theoretically. But the discussion until now is criticized in the view of legal stability. The discussion was normally, in labor law’s point of view, to protect workers. It has lack of understanding of principles of private law. As mentioned before, the contract for work and the illegal dispatch should be distinguished by the purpose of contract, the will of contracting parties and substance of contract liability. By this classification, we can tell whether it is subcontract, employment or illegal dispatch. But it has obvious limitation of standards. And when we consider these issues in the aspect of ‘civil law’, the protection of workers can be neglected. In this respect, the division between contract for work and illegal dispatch is the matter of legislative decision. And for alternative solution, there is discriminative remedy for workers with regular contract. This can reduce many issues caused by distinguishing the contract for work from the illegal dispatch.

This paper is about the extinctive prescription of the right to direct employment, the claim for damages which is incurred due to the violation of the duty to directly employ, the claim for damages which is incurred due to the violation of the duty to prohibit discrimination, which the dispatched workers have. Dispatched workers’ right to direct employment is based on article 6-2 of the korean Worker Dispatch Act, is not based on legal relation caused by commercial activities. Thus, extinctive prescription not under Article 64 0f the Korean Commercial Code but under Article 162 of the Korean Civil Code must apply to the right to direct employment. Extinctive prescription not under Article 163 0f the Korean Civil Code or under Article 49 0f the Korean Labor Standards Act but under Article 162 of the Korean Civil Code must apply to the right to claim for damages corresponding wages which is incurred due to user company’s violation of the duty to directly employ. Dispatched workers can claim for damages about the violation of the duty to prohibit discrimination under article 21 of the korean Worker Dispatch Act, and this claim for damages are resulted from user company’s torts. In this case, extinctive prescription under Article 766 of the Korean Civil Code applies to the claim for damages. Recently The Korean Supreme Court decided April 27. 2023 also ruled that the extinctive prescription under Article 766 of the Korean Civil Code applies to the claim for damages which is incurred due to the violation of the duty to prohibit discrimination under article 21 of the korean Worker Dispatch Act.

우리나라에서는 1970년대부터 조선, 자동차 등 제조업 분야에서 도급을 위장한 위장도급이 성행하여 고용질서를 방해하는 사례가 많았다. 정부는 1988년 「파견법」을 제정해 제한된 범위 내에서 근로자파견을 허용함으로써 위장도급의 폐해를 최소화하고자 하였다. 그러나 도급인의 사업장에서 근로하는 ‘사내하도급’이 유행하면서, 도급이지만 실질적으로 고용과 사용이 분리되는 파견근로 형식의 위장도급내지는 불법파견이 여전히 성행하고 있다. 정부는 고시와 지침을 제･개정하고, 행정감독을 강화여 위장도급 혹은 불법파견을 근절하고자 하고 있으나 여전히 만족할만한 해결책을 찾지 못하고 있다. 본고는 천안･아산지역 제조업을 중심으로 이루어지고 있는 불법파견 실태를 실증적으로 조사하여 기술하고, 불법파견을 예방하고 간접고용 근로자들의 노동권익 향상을 위한 실효성 있는 방안을 제시하고자 하였다.

Because disguised subcontract practices had been prevalent in the manufacturing field such as automobile and shipbuilding industries and disturbed the standard of employment since early 1970s, the Korean government attempted to reduce the negative effects that the disguised subcontract caused in labor market by enacting 「Dispatch Workers Act(1988)」 which restraints legal labor dispatch only in limited industrial areas even under severe regulations. As subcontract within the firm became very popular, however, disguised subcontract practices are still prevalent in which employment and management are separate so that they are subcontracts in form but illegal labor dispatch in reality. Enacting a variety of legal methods and reinforcing administrative supervision to eradicate disguised subcontract or illegal labor dispatch practices, the government generally fails. This study surveys on the realities of illegal labor dispatch in Cheonan and Asan cities and propose effective remedies to reduce illegal practices.

경영계와 노동계의 지루하고도 격렬한 논쟁 끝에 도입된 파견근로자보호등에관한법률이 시행된 지 5년이 지난 지금 동 법의 적용을 회피하거나 일탈하기 위한 각종의 편법 상황이 노동현장에서 횡행하는 등 파견법 제정 당시에 예상하지 못하였던 문제점들이 드러나고 있고, 그 중 파견기간이 2년 이상 경과하면 사용사업주가 고용의제를 하도록 한 파견법 제6조 제3항의 규정을 둘러싸고 논쟁이 가열되고 있다. 이 글에서는 파견법의 흠결에 대한 보완이 있기 전이라도 현행 파견법의 해석론에 입각하여 현재 발생하고 있는 파견법상의 제반 문제를 해결하여야만 할 것이라는 전제 아래 파견법의 주요 내용과 파견기간 제한규정의 입법취지, 위법한 파견의 유형을 살펴보고, 위법한 근로자파견의 경우 위법한 파견기간이 2년 이상 경과한 경우에도 적법한 파견의 경우와 마찬가지로 파견법 제6조 제3항을 적용하여 사용사업주가 고용의제를 하도록 할 것인지 여부에 관한 고용간주규정 적용긍정설, 고용간주규정 적용부정설, 제한적 고용간주규정 적용설, 직접고용관계 성립설 등 제 학설을 살펴보고, 이와 관련하여 최근 선고된 대법원 2003. 9. 23. 선고 2003두3420 판결을 평석하였다. 또한 파견법 시행 후 2년이 경과하면서부터 파견기간이 2년 경과된 위법한 근로자파견의 형태가 속속 나타나고 있고 이 경우 사용사업주는 고용의제를 하지 않으려고 하고, 파견근로자는 고용의제나 직접 고용을 주장하는 등 노동현장의 곳곳에서 파견법을 둘러싸고 다양한 분쟁이 이루어지고 있는바, 이러한 여러 논쟁에 대하여 언제까지나 미비한 파견법의 해석론으로 커버할 수는 없다는 전제하에, 파견법을 둘러싸고 여러 가지 다양한 문제점이 제기되고 있으므로 해석론으로 한계가 있는 상황에서 이를 입법적으로 해결하는 수밖에 없다는 점을 강조하였다.