KTX 대법원 판결과 파견과 도급의 구별기준

초록

The Supreme Court’s ruling on KTX case left a new precedent by presenting generalizations about the distinction between temporary work and subcontracting other than the 2010 Hyundai Motor case. But this judgment is revealed by a number of problems in relation to the normative assessment of the evaluation factors and facts to distinguish between temporary work and subcontracting by taking no full account of the attribute of the labor subcontracting or the characteristics of exclusive in-house subcontracting. Whether binding order has been done or not is a basic evaluation factor to distinguish between temporary work and subcontracting. However, when it is determined with an emphasis on the exercise of direct and concrete orders without comprehensive understanding, the advantage of the synthetic judgment method considering the attribute of the labor subcontracting or characteristics of in-house subcontracting as a whole can’t be taken. In the case of exclusive in-house subcontractors to trade with only one prime contract who has absolute dominance over themselves such as in Korea and Japan, the independence itself as a business owner is always subject to doubt. In this regard, it is bound to be limited to apply without making any adjustments the criterion of distinction between temporary work and subcontracting adopted in Germany where the original employer at least win its independence as the employer. Therefore, in exclusive in-house subcontracting, it is necessary to consider together the factors to assess the independence of business management and the factors to assess the independence of the work performed. In addition, the exercise of discretion in personnel and labor management of five evaluation factors specified in KTX ruling is inadequate as evaluation factor to distinguish between temporary work and subcontracting because the factor is commonly required for temporary work and subcontracting.

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