위법파견의 사법(私法)적 효과

Abstract

The Supreme Court made a pioneering decision regarding to 「the temporary agency workers (protection) act(TAWA 1988)」 at ‘the Yescos case’(case no. 2007du22320) in Sep. 18th, 2008; ① whether an article providing direct employment could be applied for illegal employee-dispatching? and ② what form of employment would be arising out of the effect in this article?This paper aims to find an obvious meaning of the Yescos case to inspect closely the debates in lower court's rulings and in related academic circles, focusing on a former one(above ①). An article providing direct employment, which has still been a debating subject, was provided in section 6③ of the TAWA(1998); “An using-employer should employ a temporary agency worker directly, if he uses the worker more than two years, except that the employee gives a written opposition”. Disputes about this section could be classified three one according to time. First one was conflicting claims between Prof. Choi and me as to the Supreme Court decision called SK Inc. case(SK case), Second one was discussions on lower court's rulings posterior to SK case and last one was the opposition between Prof. Yoo and Prof. Park related to preparatory documents for Yescos case. For this arguments, The Supreme courts held that section 6③could be applied in illegal employee-dispatching, and an using-employer should employ a temporary agency worker directly. This judgement resolved a conflict that caused in lower court's rulings. Moreover, it found some solutions over the illegal temoprary agency work, and the court took a theoretical approach to TAWA, particularly about the section 6③. The most important thing is that the court represented the opinion that the on-site subcontracting could be considered to temporary agency work in the TAWA. However, the Court could not review the legal effect in case whether an using-employer could not use the temporary agency worker less than two years. All things considered, Yescos case could be a double-edged sword.