위법파견 시 직접고용에 관련된 권리의 실효에 관한 연구

Abstract

The Supreme Court regards the legal provisions of the law on direct employment deeming and direct employment obligations to constitute a right of claim. As a result, various problems arise, including retrospective double labor contract relations, iniquities between the continuation of dispatch of workers and direct employment obligations under Article 13 of Act on the Protection, Etc. of Temporary Agency Workers (henceforth, “the Workers Dispatching Act”), and the legal application of workers who deviate from the legal relationship of dispatching workers due to resignation.<BR> In particular, the court narrowly interprets the scope of workers’ “explicit expression of opposition” under the Workers Dispatching Act in order to be consistent when interpreting the provisions of direct employment deeming and obligations. Additionally, in the process of citing a wage claim for non-fulfillment of the duty of direct employment, the court has found that a worker who expressed his intention to resign to the dispatching employer and left the dispatched worker relationship did not express an “explicit expression of opposition”; it also cited a wage claim.<BR> The interpretation of the court is unreasonable because it contradicts the perceptions of the parties involved in the worker dispatch relationship and recognizes the exercise of the dispatched worker’s rights that break the trust between the direct employer and the dispatching employer. The principle of extinction of rights can be applied to claims based on the legal provisions of the law on direct employment deeming and direct employment obligations of the dispatched worker. In the case of the resignation of a dispatched worker, it is also necessary to reconsider the worker’s explicit expression of opposition and wage claim for non-fulfillment of the duty of direct employment under the Workers Dispatching Act.