시용관계 혹은, 수습근로관계 등을 둘러싼 법적 쟁점에 관하여 (Regarding the Legal Issues in relation to Trial System or Proationary period in employment matters)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 31권 / 2호 / 167 ~ 190페이지
· 저자명 : 윤기택

초록

Given the fact that dismissals are not easy, employers will try to use a trial system that allows employees to be hired after fully verifying the quality of their workforce rather than offering permanent employment. However, it is important to regulate the abuse of the system as it could lead to an increase in non-regular employment and unemployment among young people.
In this thesis, we looked at the distinction between the trial period and the probationary period, the problem of the trial contract in the fixed-term employment contract, the length and progress of the trial period, the nature of the trial period, and the specific criteria for rejection of this continuing employment after the expiration of the trial period.
First, the trial labour contract is a type of employment contract with employer’s termination right by observing and evaluating worker’s competence of work such as work ability, qualities, character, and sincerity, for a certain period of time after hiring as a trainee. In general, trial employment is used for the purpose of temporary employment before entering into permanent employment. On the contrary, the probation period refers to a period set for the purpose of training and training workers’ vocational skills after the official recruitment, and it is used in the sense that it has already been officially recruited, and there is no specific work adequacy evaluation to determine whether or not to be employed.
Depending on whether the employment contract is trial or probation, it can result in a substantial difference to the employee, so it is necessary to interpret the employment contract by clearly distinguishing it conceptually. In addition, it is a matter of interpretation of the employment contract according to specific issues, as it is necessary to grasp what meaning is actually used through the employment contract or employment rules Second, employment disputes may arise as to whether it is a contract period or a trial period. In such cases, it is ultimately a matter of interpretation of the parties' intention, but if it is interpreted that the purpose and purpose of the period is to evaluate and judge the employee's ability to work, etc. during that period, it should be interpreted as a possible period of use for the protection of the employee. In addition, it would not be easy to accept the position that it is not acceptable to include temporary work in part-time work contracts in consideration of the fact that it is difficult for an employee in a subordinate position to enter into a part-time work contract to claim to exclude them in the absence of clear application laws regarding the part-time work.
Third, it can be interpreted as invalid in accordance with Article 103 of the Civil Act that although it may differ depending on the purpose and occupation of the setting, the period of use is generally appropriate for three months, and the period of unfair long-term use is feared to destabilize the status of employees. If there is no reasonable reason for not being able to determine the eligibility of employees during the first period of employment, the employer shall be deemed to be unable to extend the period of use, and if the employer does not actively express to the hirer that it is inappropriate as a full-time employee even though the specified period of use has passed, the hirer shall be deemed to acquire the status as a full-time employee.
Fourth, the legal nature of the trial employment contract was regarded as a contract with the right to terminate. Therefore, in the case of a trial employment contract, the employer can terminate the employment contract by exercising the termination right reserved at the end of the trial period. However, as an employee during the trial period has an employment contract as well as a formal employee, exercising the right to terminate is equivalent to dismissal under the Labor Standards Act. Therefore, when exercising the right to terminate, there must be a legitimate reason specified in the Labor Standards Act. And if the employer wants to refuse the recruitment after the trial period has elapsed, there must be an objective and reasonable reason, and that must be considerable in the social sense. In addition, the judiciary jurisdiction must be limited to business competence and must comply with the evaluation procedures established in advance.

영어초록

Given the fact that dismissals are not easy, employers will try to use a trial system that allows employees to be hired after fully verifying the quality of their workforce rather than offering permanent employment. However, it is important to regulate the abuse of the system as it could lead to an increase in non-regular employment and unemployment among young people.
In this thesis, we looked at the distinction between the trial period and the probationary period, the problem of the trial contract in the fixed-term employment contract, the length and progress of the trial period, the nature of the trial period, and the specific criteria for rejection of this continuing employment after the expiration of the trial period.
First, the trial labour contract is a type of employment contract with employer’s termination right by observing and evaluating worker’s competence of work such as work ability, qualities, character, and sincerity, for a certain period of time after hiring as a trainee. In general, trial employment is used for the purpose of temporary employment before entering into permanent employment. On the contrary, the probation period refers to a period set for the purpose of training and training workers’ vocational skills after the official recruitment, and it is used in the sense that it has already been officially recruited, and there is no specific work adequacy evaluation to determine whether or not to be employed.
Depending on whether the employment contract is trial or probation, it can result in a substantial difference to the employee, so it is necessary to interpret the employment contract by clearly distinguishing it conceptually. In addition, it is a matter of interpretation of the employment contract according to specific issues, as it is necessary to grasp what meaning is actually used through the employment contract or employment rules Second, employment disputes may arise as to whether it is a contract period or a trial period. In such cases, it is ultimately a matter of interpretation of the parties' intention, but if it is interpreted that the purpose and purpose of the period is to evaluate and judge the employee's ability to work, etc. during that period, it should be interpreted as a possible period of use for the protection of the employee. In addition, it would not be easy to accept the position that it is not acceptable to include temporary work in part-time work contracts in consideration of the fact that it is difficult for an employee in a subordinate position to enter into a part-time work contract to claim to exclude them in the absence of clear application laws regarding the part-time work.
Third, it can be interpreted as invalid in accordance with Article 103 of the Civil Act that although it may differ depending on the purpose and occupation of the setting, the period of use is generally appropriate for three months, and the period of unfair long-term use is feared to destabilize the status of employees. If there is no reasonable reason for not being able to determine the eligibility of employees during the first period of employment, the employer shall be deemed to be unable to extend the period of use, and if the employer does not actively express to the hirer that it is inappropriate as a full-time employee even though the specified period of use has passed, the hirer shall be deemed to acquire the status as a full-time employee.
Fourth, the legal nature of the trial employment contract was regarded as a contract with the right to terminate. Therefore, in the case of a trial employment contract, the employer can terminate the employment contract by exercising the termination right reserved at the end of the trial period. However, as an employee during the trial period has an employment contract as well as a formal employee, exercising the right to terminate is equivalent to dismissal under the Labor Standards Act. Therefore, when exercising the right to terminate, there must be a legitimate reason specified in the Labor Standards Act. And if the employer wants to refuse the recruitment after the trial period has elapsed, there must be an objective and reasonable reason, and that must be considerable in the social sense. In addition, the judiciary jurisdiction must be limited to business competence and must comply with the evaluation procedures established in advance.

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