골프장캐디의 노동법상의 지위 - 大判 2014. 2. 13, 2011다78804 및 이 판결의 원심 서울고법 2011. 8. 26, 2009나112116에 대한 비판적 검토 - = The Status of Golf Caddies by the Labor Law - A Critical Review of Supreme Court Decision 2011Da78804 Decided on February 13th, 2014 and Seoul High Court Decision 2009Na112116, the original trial -

다국어 초록 (Multilingual Abstract)

In February 2014, the Supreme Court handed down its decision on whether to consider a golf caddie as a worker by the each definition of the Labor Standards Act and the Labor Union and Labor Relations Adjustment Act. The decision was to consider the golf caddie in this case as a worker by the definition of the Labor Union and Labor Relations Adjustment Act, but not by the definition of the Labor Standards Act. However, this decision is questionable. If the golf caddie was in a independent relationship with the golf course company, it would be right to consider that there was no labor contract. In this case, the golf caddie was not a worker under the definition of the Labor Standards Act. Hence, the golf caddie was not a worker either by the Labor Union and Labor Relations Adjustment Act.
This decision agrees to the precedent which clarified the definition of a worker by the Labor Union and Labor Relations Adjustment Act as ‘a person lives on wages earned in pursuit of any type of job’. But in this decision, it is a contradiction that no direct labor contract between the golf caddie and the golf course company is needed to admit that the golf caddie is a worker by the Labor Union and Labor Relations Adjustment Act. What is more, the decision caused a confusion on the qualification of a worker on the Labor Union and Labor Relations Adjustment Act ; who can join a labor union and who can be subject to a collective agreement. Therefore, if the golf caddie in this case was not a worker by the definition of the Labor Standards Act, then the golf caddie was also not a worker by the Labor Union and Labor Relations Adjustment Act.
The status of golf caddies in the case should be acknowledged to be workers by the Labor Standards Act. A worker by the definition of the Labor Standards Act can join a labor union and may can ask for a collective bargaining through the union.

참고문헌 (Reference)

1 菅野, "勞働法, 제9판" 2010

2 박종희, "판례의 법형성적 기능과 한계 - 서울행정법원 2012.11.01. 선고 2011구합20239, 2011구합26770 판결(병합)에 대한 비판적 검토 -" 법학연구원 (70) : 191-239, 2013

3 유성재, "캐디의「 노조법」상 근로자성" 2014

4 김형배, "노동법(제23판)" 2014

5 오윤식, "골프장캐디의 근로자성 - 서울고등법원 2011. 8. 26. 선고, 2009나112116 판결 -" 법조협회 61 (61): 157-203, 2012

6 임상민, "골프장 캐디의 근로자성" 대한변호사협회 (430) : 64-93, 2012

7 Larenz, "Methodenlehre der Rechtswissenschaft" 1991

8 F. Bydlinski, "Juristische Methodenlehre und Rechtsbegriff" 1991