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건설업 하도급관계의 법적 쟁점과 개선방안 : Legal Issues and Implications for Improvement
김소영 한국노동법학회 2004 노동법학 Vol.0 No.19
This article describes the legal issues which arise in the subcontracting system of the construction industry: it identifies the legal characteristics of each contract between 1) head contractor (builder) and principal subcontractors, 2) principal subcontractors and foreman, and 3) foreman and dally workers. Especially, since the contract between head contractor (builder) and principal subcontractors is ruled by business law, i e, Basic Law on Construction Industry, Fair Trade Law on subcontracting. etc the paper considers the implication for the amendment of these laws as well Problems with Camouflaged subcontracting system are related to the poor working conditions and job instability of the daily workers employed by the subcontractors or foreman of subcontractors. It is based on the low bidding price in the multistage subcontracting system and the shirking responsibilities as an employer of subcontractor It should be possible to decide the subcontract as a camouflaged subcontract if the subcontractor is not independent in controlling its employees in labour management or personnel management, or do not have management prerogatives The foreman is regarded as guideline of the Ministry of an employer of daily workers by the Labor, but the status of foreman is different according to the various actual conditions of company. If the foreman is simply the employee of the subcontractor, the subcontractor should be regarded as an employer of the dally workers who are employed by the foreman regardless of the surface of the contract. Therefore, it is important to clarify the legal status of foreman in the construction field to protect the dally workers In respect to collective bargaining, It can be considered to permit bargaining between the construction union and head contractor(builder), because head contractors ordinarily influence the level of wage of workers in the subcontracting system Subcontractors can decide and pay the wage of workers in the range of Its construction fee which is decided by the bidding price of construction. In fact, the subcontractor has no power to enhance the workers' wage and working conditions
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