파견법상 고용간주규정과 고용의무조항의 법적효과에 대한 재검토 - 대법원 2015.11.26. 선고 2013다14965 판결과 관련하여 -

초록

The judgement seems to configure the legal effect of the direct legal fiction of employment and the duty to direct employ as equitable. The judgement defines that “the user company under the revised agency law has the direct employment duty when it violates the dispatch period restrictions, and thus the temporary agency worker then has the legal right to claim for the judgement to declare the intention to employ or in lieu when the user company does not prosecute the duty to directly hire. The direct employment relationship sets with the final judgement.” And judgment also clarifies that the temporary agency worker can claim for the payment worth loss while of the nonfulfillment of direct employment relationship. Furthermore the interpretation of the prior court of this judgement to regard direct employ thus the employee status exists from the next day of 2 years expiration period following the legal fiction of the direct employment provision, seems reasonable. However causing the right to legal claim to declare the intention to employ if not execute the duty to direct employ for the workers, and at same time to generate those workers of the employment duty from the duty to direct employ provision, cannot be permitted from the purpose of obligation provisions. Also admitting the claim to declare the intention to employ while recognizing the duty to direct employ seems to be overlooking the contract nature between the agency company and the agency workers whom should be the factual parties of the employment contract. The reasonable interpretation would be to make judgement by the legal status of the employment contract parties and therefore are the practical subjects of the contract under the constitution purpose of temporary agency law. Rather than placing the employ duty of agency worker directly to the user company because of such illegal dispatches, the interpretation should impose the legal responsibility to whom actually is responsible for the illegal dispatches and whom essentially had the intention to avoid the user responsibility. Unless changing the interpretation method, the unconstitutionality dispute of the freedom to contract will continue. And the aims to achieve the agency law objective to utilize the in house contract, outsourcing, and outside labor force such as external services will be difficult. Now we need to hear from the model case to revise the temporary agency laws of foreign examples from the aspect of the employment flexibility to facilitate the nation economy by utilizing external work forces under the global economic norm.

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