보험설계사의 법적 지위 - 대법원 2000.1.28. 선고 98두9219 판결 -

초록

Defining the concept of worker from the aspect of formality based on the conventional theory of subordinate relationship in employment and thus recognizing the extent of workers in narrower view, the Supreme Court of the Republic of Korea has, through its ruling on a number of cases, shown its ignorance of the objective of relevant laws, that is, protection of workers. On the contrary, lower courts have divided the criteria for the judgment on subordinate relationship in employment into substantive elements and formal elements, which may be safely considered as incidental elements in their trials, and have ruled that it is necessary to examine economic and social conditions of the parties to a case, if it is difficult to judge the subordinate relationship in employment by taking the substantive and formal elements comprehensively into consideration. These are evaluated as remarkable judgments through which the position that the Supreme Court has taken from the aspect of formality can be overcome and which are consistent with the realities of labor relations. If it is difficult to expect that the concept of worker could be interpreted in more extensive view in light of the precedents of the Supreme Court, it would be better to seek other measures as suggested below. However, protective measures from the aspect of economic laws have limits, since economic laws basically focus on maintenance of the order in competition and protection of consumers. At present, a series of discussions are going on concerning the protective measures on the legislative side for extraordinary employees including insurance planners (insurance sales agents). The first measure is, among other things, to recognize them as equal to ordinary workers by expanding the concept of worker currently defined in the statues relevant to labor relations. Although it is also widely recognized that it is necessary to take measures for protecting people who work as extraordinary employees, however, there is a problem that applying all provisions of labor laws to them does not accord with the existing legal system in light of the characteristics of their jobs. The second measure is to adopt the concept of quasi-employed or semi-employed worker as some foreign countries do and our Government now promotes. The measure has an advantage of flexibility in applying the provisions of labor laws, taking the characteristics of extraordinary employees into consideration. However, there are issues and problems that require further examination and review, for example, how broad the extent of quasi-employed works shall be set up, how the relevant provisions shall be applied, and how the possibility that employers might attempt to abuse the measure in a wrongful way can be tackled

키워드