User Company’s Liability and Extinctive Prescription of The Right in Illegal Dispatch

This paper is about the extinctive prescription of the right to direct employment, the claim for damages which is incurred due to the violation of the duty to directly employ, the claim for damages which is incurred due to the violation of the duty to prohibit discrimination, which the dispatched workers have. Dispatched workers’ right to direct employment is based on article 6-2 of the korean Worker Dispatch Act, is not based on legal relation caused by commercial activities. Thus, extinctive prescription not under Article 64 0f the Korean Commercial Code but under Article 162 of the Korean Civil Code must apply to the right to direct employment. Extinctive prescription not under Article 163 0f the Korean Civil Code or under Article 49 0f the Korean Labor Standards Act but under Article 162 of the Korean Civil Code must apply to the right to claim for damages corresponding wages which is incurred due to user company’s violation of the duty to directly employ. Dispatched workers can claim for damages about the violation of the duty to prohibit discrimination under article 21 of the korean Worker Dispatch Act, and this claim for damages are resulted from user company’s torts. In this case, extinctive prescription under Article 766 of the Korean Civil Code applies to the claim for damages. Recently The Korean Supreme Court decided April 27. 2023 also ruled that the extinctive prescription under Article 766 of the Korean Civil Code applies to the claim for damages which is incurred due to the violation of the duty to prohibit discrimination under article 21 of the korean Worker Dispatch Act.