일본의 취업규칙에 의한 근로조건의 불이익변경 법리― 한국과 일본의 비교법적 관점에서 ― (Unfavorable Modifications of Working Conditions through Employment Regulations in Japan- Comparative considerations about Japanese and Korean Law -)

서지정보

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· 저자명 : 박효숙

초록

This article aims to clarify whether there is any difference in the judicial precedent and the legislation of Korea and Japan by comparative analyzing the distinctive characteristics that have been developed in the legislative system of work rules of both countries．In this article, firstly the authors simply examined the Labor Contract Law of Japan related to the disadvantageous change of the rules of employment, and then focus on the disadvantageous change of the working conditions related to the wages and severance pay, analyzing the tendency of theories and legal precedents on the legal precedents stipulated from the judgment of the highest court on “Chubuk bus” case of Japan to the Labor Contract Law. Finally, they concluded comparing and analysing the legislative system of work rules of both countries.
The questions have been checked in this article as follows: in case that there is a collective consent of the worker related to the disadvantageous change of the work rules, it can be said that the position adopted by the Korean Act (the Provisos on Paragraph 1 of Article 94 of the Labor Standards Act) gained binding force by excluding the “Judgment of Reasonableness” since the predictability is high (Even after the revision of the Labor Standards Act in 1989, decisions have taken and developed the position that the workers’ collective consent is not necessary if unfavorable modifications of working conditions are reasonable ).
However, because if there is the workers’ collective consent under these legal systems, the binding force of the change is acknowledged, the “Judgment of Reasonableness” is excluded, and consequently, the “Judgment of Reasonableness” for the interests of the minority is also excluded. It is understood that such legal principles of Korea have been chosen due to the priority to the predictability and the legal stability by the collective consent rather than to protect the minority by the “Judgment of Reasonableness” that the predictability is low.
In contrast, Japan has placed a higher priority on the worker’s employment guarantee and the securing of flexibility by codifying and then adopting the Judgment of Reasonableness that were mere legal principles of the judicial precedent when the Labor Contract Law has been legislated in 2007; as a result, the benefits of the minority have been also respected. On the other hand, however, because the Judgment of Reasonableness by the Court are not unified, there is the problem that the predictability and the legal stability are sacrificed. It can be reconfirmed that such legal principles of Japan have been established as the suitable legal principles for the long-term employment system in Japan under the perspective of the employment guarantee and the securing of flexibility.

영어초록

This article aims to clarify whether there is any difference in the judicial precedent and the legislation of Korea and Japan by comparative analyzing the distinctive characteristics that have been developed in the legislative system of work rules of both countries．In this article, firstly the authors simply examined the Labor Contract Law of Japan related to the disadvantageous change of the rules of employment, and then focus on the disadvantageous change of the working conditions related to the wages and severance pay, analyzing the tendency of theories and legal precedents on the legal precedents stipulated from the judgment of the highest court on “Chubuk bus” case of Japan to the Labor Contract Law. Finally, they concluded comparing and analysing the legislative system of work rules of both countries.
The questions have been checked in this article as follows: in case that there is a collective consent of the worker related to the disadvantageous change of the work rules, it can be said that the position adopted by the Korean Act (the Provisos on Paragraph 1 of Article 94 of the Labor Standards Act) gained binding force by excluding the “Judgment of Reasonableness” since the predictability is high (Even after the revision of the Labor Standards Act in 1989, decisions have taken and developed the position that the workers’ collective consent is not necessary if unfavorable modifications of working conditions are reasonable ).
However, because if there is the workers’ collective consent under these legal systems, the binding force of the change is acknowledged, the “Judgment of Reasonableness” is excluded, and consequently, the “Judgment of Reasonableness” for the interests of the minority is also excluded. It is understood that such legal principles of Korea have been chosen due to the priority to the predictability and the legal stability by the collective consent rather than to protect the minority by the “Judgment of Reasonableness” that the predictability is low.
In contrast, Japan has placed a higher priority on the worker’s employment guarantee and the securing of flexibility by codifying and then adopting the Judgment of Reasonableness that were mere legal principles of the judicial precedent when the Labor Contract Law has been legislated in 2007; as a result, the benefits of the minority have been also respected. On the other hand, however, because the Judgment of Reasonableness by the Court are not unified, there is the problem that the predictability and the legal stability are sacrificed. It can be reconfirmed that such legal principles of Japan have been established as the suitable legal principles for the long-term employment system in Japan under the perspective of the employment guarantee and the securing of flexibility.

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