Open Decision Ledger · Labour & industrial accidents
Worker dispatch judged on substance, not contract form
Supreme Court, July 11, 2024, 2022Da265635 (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: 근로에관한소송·근로에관한소송
Official text on the National Law Information Center
Question
When an employer has a worker perform work for a third party, when does that relationship amount to worker dispatch governed by the Act on the Protection, etc. of Dispatched Workers?
Holding
Whether an arrangement is worker dispatch depends on the substance of the employment relationship, not on the name or form the parties gave the contract. Article 2(i) of the Act on the Protection, etc. of Dispatched Workers applies where the third party exercises substantial direction and control, such as giving binding instructions on the performance of the work itself; the workers are substantially incorporated into the third party's business; the employing company does not independently exercise decision-making authority over selection, headcount, education and training, working and rest hours, leave and similar matters; the purpose of the contract is not specified as work of a concretely limited scope, and the work involves little expertise or technical skill; and the employing company has no independent organisation or facilities. The Supreme Court upheld the lower court's finding that the plaintiffs had worked at the defendant's factory under the defendant's direction and orders and had provided labour for the defendant, and it accordingly recognised a worker dispatch relationship between the plaintiffs and the defendant.
Points at issue, verbatim
제반 사정에 비추어 병 등은 갑 회사로부터 지휘·명령을 받으며 갑 회사를 위한 근로를 제공하였으므로 갑 회사와 병 등이 근로자파견관계에 있었다고 본 원심판단을 수긍한 사례
Unofficial English translation
a case where the court below's determination that A Co. and C, etc. were in a worker dispatch relationship is affirmed, since, in light of the overall circumstances, C, etc. received directions and orders from A Co. and provided labor for A Co.
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
All appeals are dismissed. The costs of the final appeal shall be borne by the defendant.
Form of the test
Elements stated Stated in the decision
근로자파견에 해당하는지는 당사자가 붙인 계약의 명칭이나 형식에 구애될 것이 아니라, 제3자가 그 근로자에 대하여 직간접적으로 업무수행 자체에 관한 구속력 있는 지시를 하는 등 상당한 지휘·명령을 하는지
Unofficial English translation
whether a case falls under worker dispatch is not to be determined by the name or form of the contract attached by the parties, but by whether the third party gives binding instructions on the performance of the work itself to the employee, directly or indirectly, or exercises substantial directions and orders
Factors
- 제3자를 위한 업무를 수행하도록 하는 경우
- 갑 회사가 운영하는 공장에서 업무를 수행한 병 등이 갑 회사를 상대로 고용의 의사표시를 구한 사안에서
- 갑 회사로부터 지휘·명령을 받으며 갑 회사를 위한 근로를 제공하였으므로
- 갑 회사와 병 등이 근로자파견관계에 있었다고 본 원심판단을 수긍한 사례
Unofficial English translation
• where an employee is made to perform work for a third party
• in a case where C and other employees, who performed work at a factory operated by A Co., sought a declaration of intent to employ against A Co.
• since they received directions and orders from A Co. and provided labor for A Co.
• a case where the court below's determination that A Co. and C, etc. were in a worker dispatch relationship is affirmed
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
Where the subcontract expressly assigns day-to-day direction to the employing company's site managers, can an open-ended work scope and the absence of independent facilities alone support a finding of worker dispatch?
A later decision revising the criteria for worker dispatch set out in Supreme Court Decision 2010Da106436, or an amendment to Article 2(i) of the Act on the Protection, etc. of Dispatched Workers, would require this entry to be read again. So would a decision on the consequences of a dispatch finding for the employing company's liability to the workers.
Cross-family AI independent reading & axis check
7 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 7 of the 8 axes; the readings differed on axis 4 (form of the test).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Circumstances weighed”
The original text sets out criteria for dispatch but also calls for an examination of all the circumstances, so it can be read either as stating requirements or as calling for overall consideration.
제반 사정에 비추어 병 등은 갑 회사로부터 지휘·명령을 받으며 갑 회사를 위한 근로를 제공하였으므로Raw 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 Daegu High Court, in its judgment of 13 July 2022 (2019Na24804, 2019Na24811), found that the plaintiffs were employed by Company B, which had concluded a subcontract with the defendant, and that they worked at the defendant's factory under the defendant's direction and provided labour for the defendant, so the plaintiffs and the defendant stood in a worker dispatch relationship. It relied on several findings: the six Company B site managers at the factory merely relayed the defendant's instructions and the workers were bound by them; the Cold and Gut processes were connected to the defendant's work, with production volume and speed affected by the defendant's preceding process and the defendant controlling the Gut process speed through daily plans; the plaintiffs' assignment was not fixed to one process; the defendant influenced recruitment and the workers' hours and leave followed the defendant's production plan; and the subcontract's scope was open-ended and the work required little specialist skill, while Company B had no facilities of its own and relied on the contract alone.
Supreme Court standard: The Supreme Court found no error. Reviewing the reasons for the lower court's judgment in light of the legal principles it had set out and the record, it held that the lower court had not, by failing to conduct the necessary examination, violated the rules of logic and experience and exceeded the limits of the free evaluation of evidence, nor misapprehended the legal principles on the criteria for worker dispatch or related matters in a way that affected the judgment. It dismissed the defendant's appeal unanimously.
Distinguishing conditions
- A subcontract whose purpose is fixed as performing work of a concretely limited scope, where the work assigned to the workers is distinguishable from that of the third party's own employees and requires specialist and technical skill.
- An employing company that independently exercises authority over the selection and number of workers, education and training, work and rest times, leave and checks on conduct.
- A case where the third party gives no binding instructions on the performance of the work itself and the workers cannot be regarded as substantially incorporated into the third party's business.
Record verification notes
First, gather material on how instructions actually passed from the third party's managers through the employing company's site managers to the workers, and on who could change them, since these facts underpinned the lower court's decision. Then check each element the Court listed against the record: whether the workers were substantially incorporated into the third party's business, whether the employing company exercised its decision-making authority independently, whether the contract's scope was concretely limited and the work required expertise, and whether the employing company had its own organisation or facilities. Test the result against Supreme Court Decision 2010Da106436 on contracts that are subcontracts in name only.
From the official text
Points at issue
[1] 원고용주가 근로자로 하여금 제3자를 위한 업무를 수행하도록 하는 경우, 파견근로자 보호 등에 관한 법률의 적용을 받는 ‘근로자파견’에 해당하는지 판단하는 기준 [2] 갑 주식회사와 도급계약을 체결한 을 주식회사 소속 근로자로서 갑 회사가 운영하는 공장에서 업무를 수행한 병 등이 갑 회사를 상대로 고용의 의사표시를 구한 사안에서, 제반 사정에 비추어 병 등은 갑 회사로부터 지휘·명령을 받으며 갑 회사를 위한 근로를 제공하였으므로 갑 회사와 병 등이 근로자파견관계에 있었다고 본 원심판단을 수긍한 사례
Unofficial English translation
[1] The criteria for determining whether a case falls under 'worker dispatch' subject to the Act on the Protection, etc. of Temporary Agency Workers where an employer has an employee perform work for a third party [2] A case where C and other employees of B Co., Ltd., which entered into a contract for work with A Co., Ltd., performed work at a factory operated by A Co. and sought a declaration of intent to employ against A Co., in which the court below's determination that A Co. and C, etc. were in a worker dispatch relationship is affirmed, since, in light of the overall circumstances, C, etc. received directions and orders from A Co. and provided labor for A Co.
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 피고가 부담한다.
Unofficial English translation
All appeals are dismissed. The costs of the final appeal shall be borne by the defendant.
Provisions referred to
[1] 파견근로자 보호 등에 관한 법률 제2조 제1호 [2] 파견근로자 보호 등에 관한 법률 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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