Open Decision Ledger · Labour & industrial accidents
Deciding labour dispatch by the substance of the relationship
Supreme Court, May 26, 2022, 2021Da210621 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 근로자지위확인등
Official text on the National Law Information Center
Question
When an employer has a worker perform work for a third party, how is it decided whether the relationship is 'labour dispatch' governed by the former Act on the Protection of Dispatched Workers, and did a car manufacturer's sales masters work under such dispatch?
Holding
The test is the substance of the employment relationship, not the name or form of the contract. Whether the relationship is labour dispatch depends on whether the third party gives binding directions on the work itself, whether the worker is substantially absorbed into the third party's business as part of one work unit, whether the employer independently decides who is selected, how many work, training, hours, leave and attendance checks, whether the work is defined, distinguished from the third party's own employees and specialised, and whether the employer has the independent organisation or facilities needed. On these facts the Supreme Court accepted that the car masters and the manufacturer were not in a dispatch relationship.
Points at issue, verbatim
갑 회사와 을 등이 근로자파견관계에 해당하지 않는다고 본 원심판단을 수긍한 사례
Unofficial English translation
A case in which the finding of the court below that A Corporation and B and others do not stand in a relationship of dispatch of workers was accepted
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 원고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The appeal costs shall be borne by the plaintiffs.
Form of the test
Elements stated Stated in the decision
제3자가 당해 근로자에 대하여 직간접적으로 그 업무수행 자체에 관한 구속력 있는 지시를 하는 등 상당한 지휘·명령을 하는지, 당해 근로자가 제3자 소속 근로자와 하나의 작업집단으로 구성되어 직접 공동 작업을 하는 등 제3자의 사업에 실질적으로 편입되었다고 볼 수 있는지
Unofficial English translation
whether the third party gives binding instructions concerning the performance of the work itself to the employee, directly or indirectly, or otherwise exercises substantial direction and orders, and whether the employee is composed as a single working group with the employees affiliated with the third party and directly performs joint work, etc., such that the employee can be regarded as having been substantially incorporated into the business of the third party
Factors
- 구 파견근로자 보호 등에 관한 법률의 적용을 받는 ‘근로자파견’에 해당하는지 판단하는 기준
- 자동차 판매용역계약을 체결하고 해당 대리점에서 카마스터로서 자동차 판매 및 수금, 채권관리 등의 업무를 수행한 을 등이 갑 회사를 상대로 근로자지위확인 등을 구한 사안에서
- 갑 회사와 을 등이 근로자파견관계에 해당하지 않는다고 본 원심판단을 수긍한 사례
Unofficial English translation
• The criteria for determining whether a case constitutes a 'dispatch of workers' subject to the former Act on the Protection, etc. of Temporary Agency Workers
• In a case where B and others, having entered into an automobile sales service agreement and performed work at the relevant dealership as a Car Master, including automobile sales and collection, credit management, etc., filed an action against A Corporation seeking confirmation of employee status, etc.
• A case in which the finding of the court below that A Corporation and B and others do not stand in a relationship of dispatch of workers was accepted
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2015. 2. 26. 선고 2010다106436 판결(공2015상, 515)
Unofficial English translation
Supreme Court Decision 2010Da106436 decided February 26, 2015 (Gong 2015 Sang, 515)
Decisions referred to
[1] 대법원 2015. 2. 26. 선고 2010다106436 판결(공2015상, 515)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
At what point does training given by the manufacturer to the workers of its dealers cross from information transfer into a binding direction on how the work is done?
A record showing that the manufacturer directly determined who was hired, how many worked, hours or attendance, or that the masters worked as one unit with the manufacturer's branch sales staff, would call for this entry to be read again. A later Supreme Court decision revising the criteria for finding labour dispatch would do the same.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Circumstances weighed”
The source lists several substantive dispatch factors for overall review so one reading can stress requirement setting and the other can stress comprehensive consideration.
원고용주가 근로자로 하여금 제3자를 위한 업무를 수행하도록 하는 경우, 구 파견근로자 보호 등에 관한 법률의 적용을 받는 ‘근로자파견’에 해당하는지 판단하는 기준Axis 8 (Open question and revisit condition): Primary “At what point does training given by the manufacturer to the workers of its dealers cross from information transfer into a binding direction on how the work is done?” vs Independent “Would direct control by the manufacturer over the sales agents' hiring, attendance and daily work establish a worker dispatch relationship?”
The primary reading asks when training crosses into binding direction while the independent reading asks when direct control over hiring and attendance establishes dispatch.
갑 회사와 을 등이 근로자파견관계에 해당하지 않는다고 본 원심판단을 수긍한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 15 January 2021 (2020Na2012033), held that the plaintiffs and the defendant were not in a dispatch relationship. The manufacturer's sales targets, warnings, management guidelines, sales instructions, standard-setting, monitoring and IT systems were directions to dealers as the entrusted principal under the sales dealership contract, not directions to the car masters; the training it gave amounted only to information transfer. The masters did not perform work jointly with the manufacturer's branch sales staff and in fact competed with them, hiring and attendance were handled by the dealers, their selling work had specialist character, and the dealers were independent business parties.
Supreme Court standard: The Supreme Court found no error. Reading the appellate reasons against the legal standard and the record, it held that the court below had not misapplied the criteria for finding labour dispatch, had not failed to examine what it needed to, and had not exceeded the limits of free evaluation contrary to logic and experience. The plaintiffs' appeal against the principal claim was dismissed outright because no ground of appeal was stated in the notice or the brief, and all the remaining appeals were dismissed with the Justices' unanimous consent.
Distinguishing conditions
- A case in which the third party itself gives the worker binding directions on how the work is performed, rather than giving instructions to the employer about the contract.
- A case in which the workers form one work unit with the third party's own employees and are substantially absorbed into the third party's business.
- A case in which the employer itself selects and hires the workers and exercises authority over hours, leave and attendance.
Record verification notes
Build the file around the substance test rather than the contract's name: who gave the directions, whether the workers joined the third party's own work, who decided hiring, hours and attendance, and whether the work was specialised and bounded. Then check what each party paid for and who bore the cost of opening the workplace, since the court below relied on the dealers' independence as business counterparties. Note also that the appeal on the principal claim was dismissed without any ground being stated, so that part of the case carries nothing from this decision.
From the official text
Points at issue
[1] 원고용주가 근로자로 하여금 제3자를 위한 업무를 수행하도록 하는 경우, 구 파견근로자 보호 등에 관한 법률의 적용을 받는 ‘근로자파견’에 해당하는지 판단하는 기준 [2] 자동차 등을 제조·판매하는 갑 주식회사의 대리점주와 자동차 판매용역계약을 체결하고 해당 대리점에서 카마스터로서 자동차 판매 및 수금, 채권관리 등의 업무를 수행한 을 등이 갑 회사를 상대로 근로자지위확인 등을 구한 사안에서, 갑 회사와 을 등이 근로자파견관계에 해당하지 않는다고 본 원심판단을 수긍한 사례
Unofficial English translation
[1] The criteria for determining whether a case constitutes a 'dispatch of workers' subject to the former Act on the Protection, etc. of Temporary Agency Workers, where an original employer has a worker perform work for a third party [2] A case where B and others, who entered into an automobile sales service agreement with the dealer owner of A Corporation, a company that manufactures and sells automobiles, etc., and performed work at the relevant dealership as a Car Master, including automobile sales and collection, credit management, etc., filed an action against A Corporation seeking confirmation of employee status, etc., in which the determination of the court below that A Corporation and B and others do not stand in a relationship of dispatch of workers was upheld
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다. 상고비용은 원고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The appeal costs shall be borne by the plaintiffs.
Provisions referred to
[1] 구 파견근로자 보호 등에 관한 법률(2013. 3. 22. 법률 제11668호로 개정되기 전의 것) 제2조 제1호 [2] 구 파견근로자 보호 등에 관한 법률(2013. 3. 22. 법률 제11668호로 개정되기 전의 것) 제2조 제1호
Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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