사내하도급과 근로관계

조성혜(Cho, Sung-Hae) 한국노동법학회 2011 노동법학 Vol.0 No.39

After the financial crises 1997, many Korean corporations have restructured their organizations from centralized decision-making toward decentralized structures and production networks. Many large firms in Korea have achieved a more decentralized structure by splitting their production facilities. For example, large automotive manufacturers subcontract major parts of their operations to smaller supplier firms. Some firms increasingly turn to contract manufacturing, using contracting partners who have their own facilities, others utilize production facilities with the form of in-house subcontract. The trend toward decentralized production has changed at the same time firms" employment practices and the changing nature of employment relationships raise numerous issues for Korean employment laws. In Korea there is no specific rule for the employment relationship between the contractor and the employees of the in-house subcontracting company. Therefore the Korean Supreme Court established ex-post the standard of legitimate and illegitimate in-house subcontracting: i) if the in-house subcontracting company does not exist in substance and the contractor has the right to direct and supervise the employees of the in-house subcontracting company, the contractor is regarded as the substantial employer of the employees of the in-house subcontracting company: it is regarded that the implied employment relationship exists between the contractor and the employees of the in-house subcontracting company. ii) if the in-house subcontracting company does exist in substance and the contractor has the right to direct and supervise the employees of the in-house subcontracting company, the subcontractor functions merely as a temporary work agency. Hence the contractor as a using company has to employ the employees directly after the term of a contract of 2 years according to the Temporary Work Agency Act. It is assumed that the purpose of an artificial transaction is to escape the duties of the employer toward its employees. Although the Korean Supreme Court has established the such principles for the employment relationship between the principal contractor and the employees of the in-house subcontracting company, it bases its protective techniques on a mostly ex-post approach. Furthermore it does not cover all of the cases, because the individual forms of the in-house subcontractings are different case by case. In this regard it is necessary to establish the liability rule of principal contractor in case of the in-house subcontracting concerning work conditions and unfair dismissal remedies. The rule must recognize the right of employees of in-house subcontractings to prove the existence of a joint employer relationship, where the primary employer would be responsible for paying the lost wages and remedying for unfairly dismissed employees.

건설산업기본법과 하도급 거래 공정화에 관한 법률간 관계에 관한 연구

고형석 사단법인 한국건설법무학회 2023 건설법무 Vol.9 No.-

The Subcontracting Act and the Framework Act on the Construction Industry were enacted to protect the relatively weak and to establish a fair transaction order in subcontracting in the construction sector. However, when both laws are applied to construction work contracts or subcontracts, the question arises which law is applied first. Article 4 of the Subcontracting Act stipulates the priority application of theSubcontracting Act, and Article 34 of the Framework Act on the Construction Industry stipulates the priority application of other laws. Therefore, the Subcontracting Act applies to matters commonly stipulated in both laws. Of course, there is no problem if applying the Subcontracting Act is favorable to the subcontractor, but as discussed above, applying the Subcontracting Act is not only advantageous to the subcontractor. In other words, when comparing and analyzing the Subcontracting Act and the Framework Act on the Construction Industry, it is more advantageous for subcontractors to apply the Subcontracting Act to payment guarantees, payment amounts according to the direct payment reasons of the ordering party. On the other hand, it can be said that it is more advantageous for the subcontractor to apply the Framework Act on the Construction Industry in terms of the contract details, the contractor's right to request confirmation, and the reasons for ground payment. This is contrary to the purpose of the Subcontracting Act to protect contractors in construction work contracts or subcontracts. Therefore, the relationship with other laws stipulated in the Subcontracting Act needs to be revised to the principle of application of the law in favor of the contractor, not the principle of priority application of the Subcontracting Act.

하도급법상 하도급대금 직접지급청구권

심재한 한국경영법률학회 2017 經營法律 Vol.28 No.1

The Fair Transactions in Subcontracting Act has a regulation about Direct Payment of Subcontract Consideration. The Direct Payment of Subcontract Consideration aims protecting subcontractor who has econo- mical weak position in the subcontracting. Article 14 paragraph 2 prescribes that ① When the subcontractor has requested direct payment of the subcontract consideration because the principal contractor’s payment has been suspended, the principal contractor is bankrupt, or other similar reasons exist, or because the principal contractor has become unable to pay the subcontract consideration due to revocation of permission, authorization, license, registration, etc. relating to the business; ② When agreement has been made among the person placing an order, principal contractor, and subcontractor that the person placing an order shall pay the subcontract consideration directly to the subcontractor; ③ When the subcontractor has requested direct payment of the subcontract consideration where the principal contractor has failed to pay to the relevant subcontractor two or more installments of the subcontract consideration to be paid by the principal contractor as prescribed in Article 13 (1) or (3); ④ When the subcontractor has requested direct payment of the subcontract consideration where the principal contractor has failed to perform his/her obligation to guarantee the payment of subcontract consideration as prescribed in Article 13-2 (1) or (2) occurs the right of Direct Payment claim. Subcontractor actually invests his efforts and costs by manufacturing, repair, construction, or service performance. If the subcontractor fails to pay the subsidy money from the principal contractor, he will not be able to collect all of the expenses he invested in. However, the right to request Direct Payment conflicts with the principal contractor's creditors. In this article addresses these problems as well as problems with practical matters. 하도급 거래에 있어서 불공정행위는 많은 경우 대금지급 상황에서 발생하게 된다. 원사업자가 수급사업자에게 혹은 수급사업자가 2차 협력업체에 대금지급을 하지 않거나 지체하여 지급하는 경우가 발생하기도 한다. 또 원사업자가 발주자로부터 기성금이나 선급금을 받고나서도 이를 수급사업자에게 지급하지 않거나 지체하는 경우도 생긴다. 이러한 분쟁에 대응하기 위하여 하도급거래 공정화에 관한 법률 제14조는 건설산업기본법과 함께 하도급대금의 직접지급청구권을 규정하고 있다. 하도급법 제정 당시에는 발주자가 하도급대금을 임의로 수급사업자에게 직접 지급할 수 있도록 하였다. 그러나 하도급대금 지급지체가 늘어나고, 특히 외환위기로 인하여 수많은 중견업체들이 파산 내지 부도를 당하자 이들과 하도급관계를 맺고 있던 수많은 영세한 수급사업자들도 연쇄 도산하게 되었고, 그리하여 법정의 사유가 있어 수급사업자가 하도급대금의 직접지급을 요청한 때 혹은 3자간의 합의가 있을 때에는 도급인은 수급사업자에게 하도급대금을 직접지급해야 한다는 것을 발주자의 의무이자 수급사업자의 권리로 규정하게 되었다. 수급사업자에게 직접지급청구권을 부여하는 가장 큰 근거로서 제시되는 것은 수급사업자들이 자신의 노력과 비용으로 일을 완성하였음에도 원사업자의 대금지급 능력이 저하되는 등으로 인하여 하도급대금을 받지 못하는 경우를 줄이기 위함이라는 점이다. 그런데 직접청구권은 직접적으로 계약관계가 없는 자에 대한 권리로서 계약의 상대적 효력에 대한 예외에 해당한다. 따라서 법적인 관점에서 하도급대금의 직접지급청구는 다른 이해관계인의 권리에 영향을 미치거나 그로부터 영향을 받게 된다. 원도급채권이 변제, 면제 혹은 소멸시효의 완성 등의 원인으로 소멸하거나, 채권양도 등의 원인으로 권리자가 변경되거나, 압류 또는 체납처분 등의 법적 제한이 설정되는 경우 직접지급청구권의 행사에 다양한 영향을 미칠 수 있다. 또한 하도급대금의 직접지급합의와 원사업자에 대한 제3자의 권리행사가 경합하는 경우가 발생할 수 있는바, 이때는 채권양도의 대항력 문제가 발생한다. 한편 경제적 열위에 있는 수급사업자의 보호를 위하여 직접지급제도를 운영하고 있지만 실무에서는 직접지급제도로 인하여 원사업자가 수급사업자에 대해 가지는 통제권이 약화될 수 있다거나, 계약자유의 원칙을 과도하게 제한한다는 비판이 제기되기도 한다. 이렇듯 원사업자의 채권자가 가지는 권리와 수급사업자가 가지는 직접지급청구권이 충돌할 수 있으므로 두 권리가 조화롭게 행사될 수 있도록 법을 해석하고, 제도를 운영하여야 할 것이다.

중소기업에서의 도급사업장에 대한 산업보건 관리 실태 및 관리 방안 개선에 관한 연구

최재욱,염용태,오인성 大韓産業醫學會 1993 대한직업환경의학회지 Vol.5 No.2

To examine occupational health management state of subcontract process, a total of 153 small scale companies(less than 300 workers) were surveyed about subcontract rate, kind of subcontract process, number of workers working in subcontract process, management system of occupational health in contractor company and general characteristics of subcontract company. The summary of results is as follows ; 1. Among 146 companies, 90 companies(61.6%)had subcontract process. And subcontract rate according to the industrial classification was 100% in furniture, 85.7% in fabricated metal products, 75.0% in electrical machinery and apparatus, and 70.0% in tanning and leather, etc. 2. The total number of workers in subcontract process was 2,591, and numer of workers that should get specific health examination for occupational disease was 2,127(82.1%) among them. Among 2,127 workers, kinds of specific health examination and number of workers were 539 workers(20.8%) in organic solvent, 482 workers(18.6%) in lead, 378 workers(14.5%) in noise, and 401 workers(15.4%) in noise and dust. 3. Among the 2,591 subcontract workers, number of workers working in personal subcontract(eq. cottage industry) was 275(10.7%), 1,772(68.4%) in partial process subcontract, 544(20.9%) in total process subcontract. 4. Number of companies that should appoint general safety and health manager by law was 31(34.4%), and appointment rate was 38.7% among them. Visit ever performed rate of general safety and health manager at subcontract company was 16.6%. 5. Among the above 31 companies, safety and health committee was organised in 3 companies(9.6%), and was held regularly in only 1 company. 6. The causes for subcontract were "for shortness of worker(72.0%)", "to keep the date of delivery(66.6%)", "for company own problems-eq. narrow working space(50.0%)", "for economic incentive(43.3%)", "for difficult labor management(25.5%)", "for strict government regulation(24.4%)", "for high and difficult technology(22.2%)". 7. Among the 356 subcontract companies except personal subcontract, average number of workers per company was 13.4, beneficiary rate of Industrial Accident Compensation Insurance was 28.3%, beneficiary rate of general health examination was 23.3%, beneficiary rate of specific health examination was 11.8%.

파견과 도급의 구별기준에 관한 독일과 한국의 판결 비교

박지순 노동법이론실무학회 2013 노동법포럼 Vol.- No.11

Making a distinction between genuine (or legal) subcontract and so-called disguised subcontract is a highly complex matter. Considering that subcontracting is a traditional and legal form of work in the modern economy system where labor is specialized and that employers have right to subcontract, utilizing outside labor should not be interrupted. subcontracting usual tasks that were usually conducted in the workplace could be carried out by subcontract workers if the structure of command and share of risk are clearly formed in the way of subcontract. Therefore one should not illegalize all types of subcontract. Also current regulations do not normatively support the argument that dispatch employment of subcontract should not be utilized for usual tasks. The strict requirements of the Temporary Work Act and the duty of making direct employment relationship between employer and employee in the case of violation of the act clearly limit the freedom of contract to a considerable extent. If the Temporary Work Act sets a broad scope of dispatch employment even when the parties to the subcontract wished to specialize the labor, it can leads to arbitrary judgement damaging legal stability. Thus, only construction in conformity with the Constitution on normative concept of dispatch employment can justify the legal effects of the Temporary Work Act. In this context, this paper examined the standards that Korean courts could use to reasonably distinguish dispatch employment and subcontract on a basis of recent decisions of German Federal Labor Court(BAG). BAG does not limit in-house subcontracting in range and approves a contract as a legal subcontract as long as the employer command the employee and the aim of contract and the relationship of burden of risk are not out of the nature of subcontract contract. In contrast, Korean Supreme Court tends to distinguish between dispatch employment and subcontract based on the form of working, details of work, means of work putting too much importance on phenomenal facts. The paper marks this point as the difference between decisions of German courts and Korean courts. At the same time, an important question of how to protect workers put to subcontract remains to be dealt with in harmony as future challenges in making legislation policies.

하도급거래 공정성 평가틀 구축을 위한 시론적 연구

김관보(Kwanbo Kim),김명수(Myeong-Soo Kim),채경진(Kyungjin Chae) 한국경제연구원 2009 규제연구 Vol.18 No.2

본 연구는 수직적․종속적 거래의 특성을 지닌 하도급거래 공정성 추세를 평가하기위한 지속가능한 ‘하도급거래 공정성 평가틀’을 구축하고 공정정지수를 산정하는 시론적 고찰을 시도하였다. 첫째, 하도급거래 공정성 평가틀 구축을 위한 하도급거래 공정성개념을 크게 3가지, 즉 절차적 공정성, 분배적 공정성, 상호작용 공정성으로 분류하였다.둘째, 하도급거래 공정성 평가틀을 구성할 평가부문(항목) 및 세부 평가지표의 추출 근거인 하도급 관련 법령 및 상생협약 내용 등을 분석하여 분류된 하도급거래 공정성 개념과 연계하였다. 셋째, 이를 바탕으로 하도급거래 공정성 평가틀(안)을 도출한 후 평가틀에 포함된 평가부문(항목) 및 평가지표들에 대한 상호간 중요도의 가중치 조사를 위해계층분석방법(AHP)을 실시하였다. 하도급거래 공정성 평가틀은 3개의 평가항목, 11개의평가지표 및 22개의 세부 측정지표로 구성된다. 하도급거래 공정성 평가틀의 3가지 평가항목과 11개 평가지표들에 대한 상호간 중요도의 가중치 조사결과 AHP 1차 수준인 평가항목 간의 비교에서 건설업과 제조․수리업의 경우 하도급계약 이행이, 용역․서비스업의 경우 하도급계약 체결이 가장 중요한 영역으로 나타났다. 평가지표 간의 비교분석 결과 하도급계약 체결 시 하도급대금 결정 및 조정은 모든 업종에서 가장 중요한 것으로 나타났다. 종합가중치 및 전체 우선순위 분석 결과, 1순위에서 3순위까지(하도급대금지급→부당감액→하도급대금 결정 및 조정)는 모든 업종이 동일한 순위를 보였다. 끝으로 하도급거래 공정성 평가틀을 적용하기 위한 부문별 공정성 지수(SFI) 및 종합 공정성 지수(CFI)를 산정하였다. The purpose of this article is to construct the sustainable 'Fairness Evaluation System of Subcontracting Transactions' and calculate its fairness indices for evaluating the fairness of subcontracting transaction. First, the fairness concepts are categorized into three types for constructing the fairness evaluation system of subcontracting transaction: 1) procedural fairness, 2) result (outcome) fairness, and 3) mutual interaction (win-win cooperation) fairness. Second, both evaluation sectors (items) and detailed evaluation indicators are drawn from the subcontracting-related laws and win-win (cooperation) agreement and are linked to the concepts of subcontracting transaction fairness. Third, based on these findings, AHP (analytic hierarchy process) analysis is conducted to explore the degree of mutual importance and weight of evaluation sectors and their indicators. Finally, the 'Fairness Evaluation System of Subcontracting Transactions is created. The system includes three evaluation sectors: subcontracting contract conclusion, subcontracting contract execution, and subcontracting win-win cooperation. Also the system has 11 evaluation indicators and 22 detailed measurement indicators. The primary level analysis result of AHP has shown that subcontracting contract execution is the most important sector in the construction, manufacturing, and repair industries, while subcontracting contract conclusion is the most important item in the service industries. The secondary level analysis result of AHP with 11 evaluation indicators has demonstrated that subcontracting price decision and adjustment in the subcontracting contract execution is the most important indicator across all industries. The comprehensive weight and overall ranking results of all evaluation indicators have represented that subcontracting price payment is first, unfair subcontracting price reduction is second, and subcontracting decision and adjustment is third in all industries. The sectoral fairness index (SFI) and the composite fairness index (CFI) are calculated to apply the ‘Fairness Evaluation System of Subcontracting Transactions.'

KTX 대법원 판결과 파견과 도급의 구별기준

조경배(Cho, Kyung-Bae) 한국노동법학회 2015 노동법학 Vol.0 No.56

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.

조선업에서의 부당한 하도급대금결정행위 - 하도급법 제4조 제2항 제5호를 중심으로 -

조혜신 ( Hye-shin Cho ),임수영 ( Su-young Lim ) 한국경쟁법학회 2020 競爭法硏究 Vol.42 No.-

In the shipbuilding industry, one of Korea’s main industries, subcontracting is extensively prevalent, especially compared to other industries, and the process and structure of the payment decision are unique. In other words, the subcontract price in the shipbuilding industry is calculated based on the “time value” rather than “quantity” and various valuation factors are posted here, making it a likely point for disputes between the parties to the subcontracting transaction. What we particularly want to note in this article is the evaluative nature of price in subcontract. Determining the price between parties is essentially a matter of profit allocation arising from the transaction, and, moreover, if there are many circumstances in which the equality of the status between the parties is not guaranteed, it is necessary to determine from an objective perspective whether the price decision was made on the basis of a fair share of profits, which is exactly what the Subcontracting Act would require. In the case of Article 4(2)5, in particular, the requirement of ‘unilateral’ will have important implications for indirectly proving the unfairness of the price level, which is based on the assumption that if one of the parties is in a fairly superior position in the transaction, the other party may not be able to enjoy the independence and autonomy of decision-making in the course of negotiations for the payment, and that it is difficult to conclude that there is a genuine agreement. Therefore, it would be possible to assess the unfairness of pricing by determining the unilaterality of the process and the low level of unit price based on a comprehensive understanding of the structure of the transaction in which the pricing has been made. In this regard, Article 4(2)5 of the Act is important in that it facilitates the determination of whether price decisions have been made unfairly between the parties in subcontract whose status is not asymmetrical in such industries as shipbuilding, where it is difficult to find a standard for price comparison. If so, the importance of the various circumstances supporting the unilaterality of the payment decision in the application of Article 4(2)5 needs to be sufficiently emphasized, with the relative importance of the judgment on the relatively ‘low unit price’ being somewhat reduced. However, it is regrettable that the court rulings on cases involving unfair subcontracting decisions in the shipbuilding industry reviewed in this paper did not deal with the issue heavily, but rather highlighted issues such as whether the time value was “unit price” or “low unit price.” If the legislative purpose of the Subcontracting Act and the intent of Article 4 are more actively engraved, a practical insight into whether the allocation of profits between the parties to the Subcontracting Act is a fair price decision based on the specific productive and transactional characteristics of the industry, rather than on the question of literary inclusion or interpretation of each component.

사내하도급근로자 가이드라인의 개선과제 — 개정된 산안법의 내용을 중심으로 —

최홍기(Choi, Hong-Ki) 한국비교노동법학회 2020 노동법논총 Vol.48 No.-

By recognizing the need to improve the working conditions of in-house subcontract workers substantially, since 2011, the Korean government has enacted and operated “Guideline for protecting in-house subcontract workers’ working conditions,” instead of discussing the distinction between in-house subcontracting and dispatch. This guideline seeks to protect and improve working conditions for in-house subcontract workers. Also, for the sake of proper operation, the guideline plays a specific role in forming a social order for the protection of in-house subcontract workers by promoting protection and improvement of the working conditions of the in-house subcontracting workers, and by providing criteria and direction for the original contractor and subcontractor’s compliance and efforts. On the other hand, on January 15, 2019, the “Occupational Safety and Health Act,” which prevents industrial accidents and regulates matters related to workers’ safety and health, was thoroughly revised and implemented. It is worth noting that many of the significant revisions included matters related to in-house subcontracting. Therefore, this study objectively analyzed and reviewed the main contents of the revised Occupational Safety and Health Act, and then examined whether the guideline for protecting in-house subcontract workers should reflect the contents of the reinforced industrial accident prevention measures for contractors. Until the legislative reorganization concerning in-house subcontracting is done, discussions will need to concentrate on in terms of enhancing the effectiveness of the guideline for protecting in-house subcontracting workers.

사내하도급 삼부작 판결의 의의

강성태(Kang Sung-Tae) 한국노동법학회 2010 노동법학 Vol.0 No.35

The phenomenon, “indirect employment” or “on-site subcontracting” that is not described in legally, has increased rapidly in recent years. The aim of this paper is to review the legal meanings of recent cases related to on-site subcontracting in the Supreme Court; “The Hyundai Mipo dockyard Inc. case (Mipo case)”, “The Yescos Inc. case(Yescos case)” and “The Hyundai heavy Industries Inc. case(Heavy Indsitries case). On the one hand, these cases have several common denominator including to start at indirect employment relationship base, on the other hand, each one of these has distinct legal characteristics. For these reasons, I examined these cases commonly and relatively, and named these three decisions as “on-site subcontracting trilogy”. AT the first case(Mipo case), the Supreme Court reconfirmed its position of “implied employment relationship principle” for the employment status of workers of on-site subcontracting company. The court have held that on-site subcontracting worker could be an employee of using company, regardless of formal contract, if the reality of hiring employer would be that of paper company and using company would have control over on-site subcontracting worker's services. The court represented the opinion of legal effect that the on-site subcontracting could be considered to temporary agency work in the “the temporary agency workers (protection) act(TAWA)” in the Yescos case. The main purpose of this case is to bring a on-site subcontracting over to temporary agency, but more important thing is that it found some solutions over the illegal temporary agency work. For this, the court took a theoretical approach to TAWA, particularly about the section 6, providing the obligation of employment for employer on using company. Finally, in the Heavy Industries case, the court dealt with the concept of employer on indirect employment concerning with collective bargaining. The court ruling in this case took a stance that it was up to “who is the substantial counterpart related to collective bargaining? ”, that had been discussed from a different point of view on the judical precedents. The court also held that it is possible to be reiteration of employer in on-site subcontracting, then the order for unfair labor practice in the circumstances could be contained some wide variety with felicity.