이행강제금제도의 효율적 운용을 위한 제언 ― 부과기준의 합리화․일원화 방안을 중심으로 ― (Suggestions of Improvement on the Current System of “Compulsory Performance Money” : focused on the Ideas for Rationalization/Unification of Guidelines for Imposition)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 28권 / 315 ~ 366페이지
· 저자명 : 김경태

초록

The ‘Labor Standards Act’ introduced a ‘compulsory performance money system’ through the past revision of January 26, 2007. However, due to its hasty legislation with insufficient prior review or research, a number of operational issues have been raised as a result after the implementation of the system and doubts about its actual effectiveness are being discussed as well. At the present time of 6 years after the introduction of this system, there’s an urgent need for earnest discussions for an efficient operation of the compulsory performance money system.
In particular, regarding the practices of the Labor Relations Commissions, the current guidelines for imposition for the compulsory performance money system are not specifically set up and each Labor Relations Commission is preparing and applying its own standards, and this has resulted in creating problems where different amounts for compulsory performance money are being determined and imposed, even in similar cases, on the users by the Labor Relations Commissions.
Concerning this issue, there are even views that it would be preferable to allow the Labor Relations Commissions to exercise discretion rather than setting and applying uniform standards at the time when the compulsory performance money is calculated. Such assertions, however, may bring about serious problems in terms of the legal stability and predictability; hence, even if each Labor Relations Commission is given a certain degree of discretion in calculating the amount for compulsory performance money, the current specific guidelines for imposition need to be unified by setting them to reasonable guidelines appropriate for the reality.
In order to rationalize the guidelines for imposition: first, (i) the meaning of “executory” needs to be developed in relations to the meaning of job reinstatement and back-pay; and (ii) instead of consideration for attributable reasons of the users concerning the dismissal action, the attributable reasons of the users concerning executory need to be considered. In addition, (iii) to enable achievement of the implementation purpose of the compulsory performance money system, the scale of a business must be considered in determining the amount of imposition. Finally, (iv) the causes for suspension of imposition of compulsory performance money would need to be regulated to match the reality and the reasons for exemption of imposition must be newly introduced.

영어초록

The ‘Labor Standards Act’ introduced a ‘compulsory performance money system’ through the past revision of January 26, 2007. However, due to its hasty legislation with insufficient prior review or research, a number of operational issues have been raised as a result after the implementation of the system and doubts about its actual effectiveness are being discussed as well. At the present time of 6 years after the introduction of this system, there’s an urgent need for earnest discussions for an efficient operation of the compulsory performance money system.
In particular, regarding the practices of the Labor Relations Commissions, the current guidelines for imposition for the compulsory performance money system are not specifically set up and each Labor Relations Commission is preparing and applying its own standards, and this has resulted in creating problems where different amounts for compulsory performance money are being determined and imposed, even in similar cases, on the users by the Labor Relations Commissions.
Concerning this issue, there are even views that it would be preferable to allow the Labor Relations Commissions to exercise discretion rather than setting and applying uniform standards at the time when the compulsory performance money is calculated. Such assertions, however, may bring about serious problems in terms of the legal stability and predictability; hence, even if each Labor Relations Commission is given a certain degree of discretion in calculating the amount for compulsory performance money, the current specific guidelines for imposition need to be unified by setting them to reasonable guidelines appropriate for the reality.
In order to rationalize the guidelines for imposition: first, (i) the meaning of “executory” needs to be developed in relations to the meaning of job reinstatement and back-pay; and (ii) instead of consideration for attributable reasons of the users concerning the dismissal action, the attributable reasons of the users concerning executory need to be considered. In addition, (iii) to enable achievement of the implementation purpose of the compulsory performance money system, the scale of a business must be considered in determining the amount of imposition. Finally, (iv) the causes for suspension of imposition of compulsory performance money would need to be regulated to match the reality and the reasons for exemption of imposition must be newly introduced.

참고자료

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