사내하도급과 근로계약관계 - 현대자동차 판결의 검토를 중심으로 -

초록

The aim of this paper is to review the legal meanings of the Korean Supreme Court's decision on on-site subcontracting in Hyundai Motor Company(hereafter, ‘HMC case’). This case has made a huge and critical impact on Korean society overall as well as labor-management relations. Hyundai Motor case is in accordance with two important decisions of the Supreme Court: Hyundai Mipo Dockyard Inc. case (hereafter ‘Hyundai Mipo case’) and Yescos Inc. case(hereafter ‘Yescos case’). Hyundai Motor case is threefold. In the first part of this case, the Supreme Court referred to Hyundai Mipo case and reconfirmed its position of “implied employment relationship principle” for the employment status of workers of on-site subcontracting company. The Court held that the “implied employment relationship principle” could not apply to this case. Secondly, the Court confirmed that the relation between HMC and on-site subcontracting employees should be considered temporary agency work under “the Temporary Agency Workers (Protection) Act” because HMC had controlled those employees' work substantially. Lastly, the Court referred to Yescos case in which the Yescos court held that “the section of legally considering employee-dispatching relation as direct employment relation” should be applied to illegal employee-dispatching relation as well as legal employee-dispatching relation which are relevant to this case. The Court decided that HMC, as an employer, should fulfill its responsibility for those employees who worked over two years.

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