다원적 근로자 개념에 따른 프랜차이즈 가맹점주의 근로자성 ― 가맹점주의 ‘근로기준법상 근로자성’ 검토를 중심으로 ―

Abstract

Existing theories and precedents judge employees under the Labor Standards Act based on “unitary” standards. In other words, among all workers, only typical employees who have a significant subordinate relationship with the employers (users of labor) are judged as employees under the Labor Standards Act. However, if a employees are judged according to “unitary” standards without considering the specificity of individual provisions under the Labor Standards Act, the scope of employees can be narrowed because it is judged based on the strongest discipline and protection. Therefore, this article examines whether it is possible to judge employees under the Labor Standards Act “pluralistically” in consideration of the purpose, content, method, necessity of protection and discipline of individual provisions under the Labor Standards Act. In other words, this article examines the possibility of “the concept of pluralistic employee.” In the Commercial Act and the Fair Transactions in Franchise Business Act, franchisees are in the position of “independent merchants” or “independent self-employed”. However, franchise operates on the basis of “standardization” to secure unity of the franchise business and “guidance and control” of the franchisor. Therefore, the franchisee is under considerable control of the franchisor and cannot operate the franchise entirely freely at his own discretion. Franchisor establishes a business relationship with the franchisee, but actually secures employment relationship. Just because the franchisee is legally or formally an independent self-employed, makes a business contract with the franchisor, invests capital or hires workers, does not mean that the Labor Standards Act cannot be applied to the franchisee. This article examines the applicability of the Labour Standards Act to franchise business based on “the concept of pluralistic employee”. In other words, this article examines whether franchisee who is actually performing franchise operation under the Fair Transactions in Franchise Business Act, the franchise agreements and the standardization control systems of the franchisor can be subject to protection and discipline under the Labour Standards Act based on “the concept of pluralistic employee.”