간접고용에서 부당노동행위 형사책임주체

The Main Stakeholder of Criminal Liability in Unfair Labor Practice in Indirect Employment Relationship

The share of temporary workers has been expanding since the 1990s. Most of them work in an indirect employment relationship, but their collective activities are not protected by labor laws. It has been the norm that when temporary workers demand collective bargaining to their users-employers, or the users-employers have controversially conducted unfair labor practice to temporary workers, the court and prosecution judge that merely because of absence of an employment contract relation, users-employers do not hold criminal liability on the unfair labor practice. However, collective labor strife in an indirect employment relationship ought to be resolved based on the standards between workers and users-employers. Suitable standards to resolve collective labor strife is the presence of “actual influence.” In an indirect employment relationship, when the issue of users-employers’ criminal liability becomes controversial, the scope of offenders must be set primarily based on the users’ scope expansion theory pursuant to the labor laws. In this case, legal intention of the Constitutions, and Trade Union and Labor Relations Adjustment Act must be considered without sticking to the presence of the employment contract relation so that it can be judged whether or not usersemployers could become the main stakeholder of criminal liability in unfair labor practice. Even if users-employers are not the principal offenders of unfair labor practice, immediate conclusion on no criminal liability of user-employers must not be reached. In this case, it should be decided if user-employers are accomplices according to criminal laws. As such, active legal management and interpretation would protect the collective right of workers in an indirect employment relationship. This is significant in that temporary workers maintain appropriate partnership with their company, thereby boosting corporate competitiveness.