근로기준법상 근로자개념 : 근로기준법의 적용확대와 선별적용과 관련하여 = The Definition of 'Employee' on Labor Standard Act

다국어 초록 (Multilingual Abstract)

1. Because our Labor Standard Act includes the provision defining the concept of employee, should be based on the provision, the concept of employee should be based on the provision. It makes a difference with German employment law system, which don't include such a provision. The concept of employee means a party to employment contract which may be considered same as a labor contract in civil code. From the viewpoint of it, the term of 'subordination' can not be used as a criterion for the concept of employee differently from Japan labor law.
Consequently, the judiciary's interpretation, which have determined on the definition of 'employee' applying the 'subordination' as primary criterion, may have a problem with methodology. 2. If the concept of employee on Labor Standard Act is considered as a party to employment(labor) contract, substantive factors of the employment contract relations should exactly analyzation, criteria can be suggested as follow. - To offer personally one's own services with continuance
- To be subject to others' directions as a result of it - To be incorporated into a work organization, namely, 'at a business and/or workplace' - To receive own's pay in compensation for offering the services in person. Furthermore, It can be considered as secondary factors whether the services belong exclusively to person and a worker can be regarded as the self-employed running a business independently. 3. Labor Standard Act is legislated for the purpose of protecting employees as the social weak based on the Constitution (esp. Art. 32) the legislative body are obligated to make a labor law for that object, but it can make a difference in application of the law at one's own discretion. In this point our labor protection law may be distinct from the equivalent of German, in which have considered the term of labor law, subordinative work and employee as implying the same meaning. Therefore we can't determine the application extent of out Labor Standard Act with all or nothing. If the Act may be interpreted in accordance with this standpoint as above, it can flexibly cover up a various form of employment. 4. In conclusion, the concept of employee Labor Standard Act may be regarded as a party to employment contract and may be interpreted basing on the purpose of the Act. Then, it makes possible to interpret as applying the Act to some form of employment, which employers are more than two in a employment relations and on the contrary employees maintain more than two employment relations with plural contracts.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 근로기준법상 근로자 개념판단과 관련한 판례입장의 비판적 검토
• Ⅲ. 근로계약관계 당사자로서의 근로자
• Ⅳ. 근로기준법의 선별적용 가능성
• Ⅴ. 요약