프랑스의 파견제 및 사내하청의규율에 관한 연구

Abstract

The French legal system's ruling of dispatched workers can be characterized as follows :1. A worker can be dispatched only for a temporary activity of an using employer in the permitted categories of jobs prescribed by Conseil d'Etat Decree or by expanded collective conventions. 2. The duration under a ‘mission labor contract’ between a sending employer and a dispatched worker can not exceed in principle the duration of 18 months, or in exceptional circumstances the duration of 24 months. 3. If a dispatch is finished, the working post of the dispatched worker can be supplemented by the same precarious workers only after the expiration date to stop precarious employment, ‘un délai de carence’, that is equal to one third from the duration of the first dispatch. 4. A ‘mission contract’ is transformed to a non-fixed term labor contract between the using employe and the dispatched worker, provided the above mentioned rules relating to dispatched worker were violated by the using employer. 5. The dispatched worker's level-of-pay should be equal to the level-of-pay of the workers of using employer, having the equivalent professional qualification and occupying the same working post. Therefore, the principle of equal pay applies between dispatched workers and the compared workers of using employer. On the other hand, the French legal system prohibit Main contractor's actions, not going to the legal system of dispatched workers, but only using disguised subcontracts and intervening directly in the Subcontractor's labor relations. The two regulations, ‘Tort of Merchandising/délit de marchandage’, (Article. L. 8231-1) and ‘Illegal Lending labor force/prêt illicite de main-d’oeuvre, (Art. L. 8241-1) especially prohibit a Main contractor from intervening in the labor relations between a Subcontractor and the workers. If the Main contractor violates one of the provisions, the Main contractor also could be punished by penalties or imprisonments. A decision, as to whether the Main contractors intervened in the labor relations between subcontractors and their workers, is decided by judges, on the ground of the indices as follows :- Subcontractors have no skill or capital of their own;- Main contractors order, control, or supervise Subcontract workers' working;- equipments or materials are mainly supplied by the Main contractors;- the price of the subcontracted task is not calculated by alternative financial methods but by the amount of (working hours) using labor forces. The writer would like to add, that in South Korea, having a comparable legal system in relation to dispatched workers, the Penal Sanction could prove more appropriate in terms of prevention of illegal intervention of the Main contractors or their violations of the relative regulations.