한전 단전원의 근로기준법상 근로자성에 대한 연구 - 창원지방법원 2014.12.9., 선고 2014나3321 판결을 중심으로 -

초록

In a situation that is diversifying the form of dependency, whether the position as employee under the Labor Standard Law or not, there is big issue. It is important that they will be applied labor law or social security law. This is a review of approaches to the workers’ concept problems in korea. In Germany, similar worker is acknowledged due to the need for social protection and economic protection. But they is not applied Labor Law, but other laws. The Supreme Court ruling on the basis of typological way of human dependency (employment dependencies relations) lists its own individual test criteria, then maintains the attitude of identifying whether the actual employment relationship exists in each specific cases regardless of the type of contracts. The court has been applied the concept of employee from a view of labor law, because workers are not equivalent to a business. In these cases, must be respected by the contents what the parties had intended. However, we can not help but be suspicious the judgement and we hope that is not being done for purely economic reasons. In 2006, The supreme court judged in terms of ‘a considerable guidance and supervision’ as well as ‘Specific guidance and supervision’, in judging the concept of the worker. And the supreme court was regarded as a secondary element the indicators to do the business in their dominant position. If The supreme court is intended the employee’s concept of expansion due to economic protection, the court’s judgement in 2006 will be continued. In spite of that there are the judgements which is judged from the previous criteria-Specific guidance and supervision. The court’s judgement depend on that the court chosen what criteria. The court must judge a employee concept by the unified indicators, and court remains firmly of the view that is judge whether employee or not.

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