「기간제 및 단시간근로자 보호 등에 관한 법률」 제4조의 규범적 의미와 그 맥락 (The Normative Meanings and Their Context of the Art. 4. in the ACT ON THE PROTECTION, ETC. OF FIXED-TERM & PART-TIME EMPLOYEES)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 65호 / 87 ~ 131페이지
· 저자명 : 강희원

초록

The labor contract with a fixed term is regarded as a cause of unstable employment on the present labor market and a fixed-term employees are nowadays symbolized as the representative of irregular workers in the worker world. So in oder to protect the workers employed with a term the ACT ON THE PROTECTION, ETC. OF FIXED-TERM & PART-TIME EMPLOYEES(Act No. 8372, in the following, written just as “FIXED-TERM EMPLOYEE ACT”) was enacted and enforced from July 1, 2007. Since the same day, Article 16 of the Labor Standards Act, the only provision concerning the period of work contracts in the korean labor law system, has lost its effect pursuant to Article 3 of the Addenda of “FIXED-TERM EMPLOYEE ACT. There is no provision regulating the term of labor contracts explicitly in the korean labor law.
The article 4 of FIXED-TERM EMPLOYEE ACT is presently replacing the lapsed provision of the Labor Standards Act. This lapsed article of the Labor Standards Act said, “The term of a labor contract shall not exceed one year, except in case where there is no fixed term or where there is an otherwise fixed term as necessary for the completion of a certain project.” An the one hand, in the article 4 of FIXED-TERM EMPLOYEE ACT is mentioned as the followings: “(1) Any employer may hire a fixed-term worker for a period not exceeding two years (where his/her fixed-term employment contract is repetitively renewed, the total period of his/her continuous employment shall not exceed two years): Provided, That where a fixed-term worker falls under any of the following subparagraphs, any employer may hire such worker for more than two years: 1. Where the period required to complete a project or particular task is specified; 2. Where a fixed-term worker is needed to fill a vacancy arising from a worker's temporary suspension from duty or dispatch until the worker returns to work; 3. Where the period required for a worker to complete his/her schoolwork or vocational training is specified; 4. Where an employer enters into an employment contract with a senior citizen as defined in subparagraph 1 of Article 2 of the Employment Promotion for the Aged Act; 5. Where the job requires professional knowledge and skills or is offered as part of the Government's welfare or unemployment measures, as prescribed by Presidential Decree; 6. Where any reasonable ground exists equivalent to those mentioned in subparagraphs 1 through 5, as prescribed by Presidential Decree.
(2) Where any employer hires a fixed-term worker for more than two years although those grounds under the proviso to paragraph (1) do not exist or cease to exist, such fixed-term worker shall be deemed a worker subject to non-fixed term employment contract“.
Shown above, how has the korean labor law system therefrom changed its legal situation regarding the regulation of the term condition in the labor contracts? This paper is addressing the above question with its some subsidiary matters together. According the legal argument of the paper, the art. 4, par.(2) of FIXED-TERM EMPLOYEE ACT saying that such fixed-term worker shall be deemed a worker subject to non-fixed term contract, if any employer would infract the art. 4, par.(1) of FIXED-TERM EMPLOYEE ACT, is assumed that the fixed-term labor contracts is the causes of unstable employment, and that the non-fixed term contract could be a means of employment stability. In addition, The rule, that any labor contract shall be a non-fixed-period contract, when it were not under the proviso to the art. 4, par.(1) of FIXED-TERM EMPLOYEE ACT. The rule of the non-fixed-term labor contract is the default rule of labor contract in the Korean Labor Law System.

영어초록

The labor contract with a fixed term is regarded as a cause of unstable employment on the present labor market and a fixed-term employees are nowadays symbolized as the representative of irregular workers in the worker world. So in oder to protect the workers employed with a term the ACT ON THE PROTECTION, ETC. OF FIXED-TERM & PART-TIME EMPLOYEES(Act No. 8372, in the following, written just as “FIXED-TERM EMPLOYEE ACT”) was enacted and enforced from July 1, 2007. Since the same day, Article 16 of the Labor Standards Act, the only provision concerning the period of work contracts in the korean labor law system, has lost its effect pursuant to Article 3 of the Addenda of “FIXED-TERM EMPLOYEE ACT. There is no provision regulating the term of labor contracts explicitly in the korean labor law.
The article 4 of FIXED-TERM EMPLOYEE ACT is presently replacing the lapsed provision of the Labor Standards Act. This lapsed article of the Labor Standards Act said, “The term of a labor contract shall not exceed one year, except in case where there is no fixed term or where there is an otherwise fixed term as necessary for the completion of a certain project.” An the one hand, in the article 4 of FIXED-TERM EMPLOYEE ACT is mentioned as the followings: “(1) Any employer may hire a fixed-term worker for a period not exceeding two years (where his/her fixed-term employment contract is repetitively renewed, the total period of his/her continuous employment shall not exceed two years): Provided, That where a fixed-term worker falls under any of the following subparagraphs, any employer may hire such worker for more than two years: 1. Where the period required to complete a project or particular task is specified; 2. Where a fixed-term worker is needed to fill a vacancy arising from a worker's temporary suspension from duty or dispatch until the worker returns to work; 3. Where the period required for a worker to complete his/her schoolwork or vocational training is specified; 4. Where an employer enters into an employment contract with a senior citizen as defined in subparagraph 1 of Article 2 of the Employment Promotion for the Aged Act; 5. Where the job requires professional knowledge and skills or is offered as part of the Government's welfare or unemployment measures, as prescribed by Presidential Decree; 6. Where any reasonable ground exists equivalent to those mentioned in subparagraphs 1 through 5, as prescribed by Presidential Decree.
(2) Where any employer hires a fixed-term worker for more than two years although those grounds under the proviso to paragraph (1) do not exist or cease to exist, such fixed-term worker shall be deemed a worker subject to non-fixed term employment contract“.
Shown above, how has the korean labor law system therefrom changed its legal situation regarding the regulation of the term condition in the labor contracts? This paper is addressing the above question with its some subsidiary matters together. According the legal argument of the paper, the art. 4, par.(2) of FIXED-TERM EMPLOYEE ACT saying that such fixed-term worker shall be deemed a worker subject to non-fixed term contract, if any employer would infract the art. 4, par.(1) of FIXED-TERM EMPLOYEE ACT, is assumed that the fixed-term labor contracts is the causes of unstable employment, and that the non-fixed term contract could be a means of employment stability. In addition, The rule, that any labor contract shall be a non-fixed-period contract, when it were not under the proviso to the art. 4, par.(1) of FIXED-TERM EMPLOYEE ACT. The rule of the non-fixed-term labor contract is the default rule of labor contract in the Korean Labor Law System.

참고자료

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