프랜차이즈 가맹본부의 공동사용자성 여부

Abstract

The main issue of this study is whether the franchisers are employer under the labor law for franchise workers. This study earlier reviewed the judicial precedents regarding the expansion of the employers from such conventional indirect employments as intrapreneuring system, subsidiaries and infrasubcontract (implicit labor contract theory, dispatched worker theory and actual dominance theory), and examined such theories intact to the franchise agreement. However, the judicial precedents are not deemed to be perfectly applied to the franchise structure where the employment and the use are separated completely from each other. Moreover, another problem is the obscure responsibility of the franchisees.<BR> In order to solve such problems, this study suggested a joint-employers theory so that the plural employers using the workers directly and indirectly can burden the vicarious liability. In case of the United States, such a theory is applied to the franchise businesses, which we need to refer to. Under U.S. legal principles, however, in the case of indirect employment, even those who are not a party to the labor contract shall be held liable under the employment and labor laws as joint employers.<BR> If such legal theory should be applied to the franchise relations, not the agreement between franchiser and franchisees but the fact whether the franchiser has determined important working conditions for the franchisee workers or has dominated them actually would be a criterion. If a joint-employer relation should be admitted, both franchiser and franchisees would be jointly responsible for the franchisee workers.<BR> However, the question remains whether Korea’s joint-employers theory can be extended to other issues other than money claims, as it is limited to matters concerning the payment of wages for workers. In the U.S., the Doctrine of joint-employers is widely applied not only to individual labor relations but also to collective labormanagement relations, so it is necessary for us to gradually expand the scope of the labor law.