노동보호법제 적용을 위한 “종속성” 연구

초록

Determining the scope of labor protection law has become increasingly complex amid rapid changes in modern employment relations. The spread of the platform economy, algorithmic management, and multi-contractual structures has produced forms of work that no longer fit within traditional employment frameworks, leaving many workers who need protection outside the reach of the legal system. This article critically examines the concept of “subordination,” which lies at the heart of this problem, and explores alternative directions. Subordination has long served as the core criterion for determining employee status in the case law of Korea, Germany, and Japan. However, the concept was shaped in the late 19th and early 20th centuries to reflect the factory-based employment of industrial capitalism, and it now fails to capture the realities of 21st-century work. Conceptually, it suffers from circular reasoning, a forced binary structure, and unresolved conflicts among multiple indicators. Empirically, it cannot adequately encompass new forms of work such as algorithmic control and multi-platform engagements. Most fundamentally, subordination may be neither a necessary nor a sufficient condition for justifying labor law protection. Among the alternatives that have been proposed—teleological interpretation, the creation of a third category, and the business-integration theory—each carries its own limitations. This article proposes two directions. The first is to reconstruct the content of subordination itself: shifting the unit of analysis from the bilateral relationship to the overall structure of work, redefining personal subordination as the deprivation of substantive autonomy, and clarifying the normative meaning of each indicator. The second is to move beyond the framework of subordination by adopting “other-determination (Fremdbestimmung)” as a new criterion. Other-determination refers to a state in which the method, conditions, and outcomes of work are substantively determined not by the worker but by another party—a notion identified as the essence of dependent labor since Sinzheimer. By focusing directly on the substance of the working relationship rather than on external indicia, this criterion can capture cases in which substantive other-determination is exercised through algorithms or rules even in the absence of direct instruction. Because doctrinal interpretation cannot fully overcome these limitations without statutory grounding, this article proposes amending the definition of “employee” in Article 2(1)(1) of the Labor Standards Act. The proposed provision defines an employee as “a person who provides labor for another and receives remuneration in return,” and presumes employee status when the method, conditions, and content of the work are substantively determined by the recipient of the labor or by rules, standards, or systems that the recipient has established. It further provides that the form or designation of the contract shall not affect this determination. The concept of other-determination proposed here is not a finalized test for delineating the scope of labor protection, but rather a critical and exploratory framework for surfacing the realities of work that the subordination-centered discourse has failed to capture, and for bringing back into consideration those workers excluded from existing protections. The shift from subordination to other-determination is not a mere conceptual adjustment but a renewed statement about how labor law understands present-day work and the values it seeks to uphold. It is hoped that this exploratory discussion may serve as a foundation for further inquiry.

키워드