韓国の個別労働法成立ㆍ展開における日本法の影響

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 31권 / 493 ~ 533페이지
· 저자명 : 송강직

초록

The author tries to analyze the impact of Japanese labor law on Korean labor law in the individual labor relations law. It is no doubt that the Japanese law has impacted on the Korean law in the statutes, case law and labor administration etc. An author thinks that the most main causes of the impact are because the Korean labor laws and the circumstances of the labor market etc. are very similar to those of the Japanese. Accordingly an author has to analyze many contents concerned to see all impacts above. An author focuses, however, on the some points below.
Conclusions are as follows:First, the Japanese law with respect to the definition of an employee impact on the Korean law. The Supreme Court of Korea has, however, extended the definition, so some groups of workers became to be protected by the Labor Standards Act.
Second, an employer is not able to order its employee to make a contract of employment with another employer without the employee’s individual consent in principle. The consent includes advanced comprehensive consent through rules in workplace, this like theory in Japan impacted on the Korean law. Accordingly to the Supreme Court of Korea, however, where an employer has very close relations with another employer, simultaneously the practice of the transfer has been between them, that is to say between a parent company and a subsidiary company, an employer can also order its employee to make the contract with the another employer without its employee’s individual consent.
Third, a legal nature of the tentative decision to hire and a standard of justification of the transfer in Japan impact also on the Korean law each other. The former is called ‘a contract of employment that a right to terminate the contract is reserved to an employer’, the latter is a fair comparison of interests between an employer’s business necessity for the transfer and its employee’s disadvantage by the transfer.
Forth, a right to work by an employee against it employer is generally not recognized, but a duty of care for safety of an employer against its employee is interpreted to be included in an employment contract. Furthermore, some wages are especially protected by special statutes in Japan. These legal theories impact on the Korean law.
Fifth, a right to expecting renew in the fixed-term employment contract in Japan impacts on the Korean law, but now a special statute for protecting an employee under a fixed-term employment contract is enacted in Korea.
Sixth, the Supreme Court of Japan held that an employer should satisfy four requirements to do a mass dismissal. The four requirements are an urgent business necessity, an obligation of effort to avoid the dismissal, a faithful negotiation with a majority union or a representative of the employees, and finally the dismissal by fair standards. These principles of case law in Japan impacted on the Korean case law, later the Labor Standards Act Section 24 in Korea provides these four requirements, and some another procedures are added to the requirements.
Seventh, in case of a business transfer, a transferee succeeded to an employment contract with a transferor where an employee concerned does not oppose to the succession of the employment contract in Japan. This standard impacts on the Korean law. In case of a business division, a problem of the succession of the employment contract is resolved by a special statute in Japan, but it is equivalent to the problem of the succession in the business transfer in Korea.
Eighth, where an employer has a reasonable cause in changing a rule disadvantageously, the employer is able to change the rule effectively in Japan. The Labor Standards Act Section 94 in Korea provides explicitly that an employer has to get an agreement of a majority union or a majority of the employees to change the rule disadvantageously. The Supreme Court of Korea held, nevertheless, that where an employer has the reasonable cause above, the employer is effectively able to change the rule, and the rule applies to all employees.
Finally, an author introduced dispute resolution systems of the individual labor relations. There are many differences between the Japanese system and the Korean system. Of course a complaint can sue his or her dispute to the Court in both countries. In case of ADR system, however, the Labor Tribunal deals with disputes arising from the individual labor relations in Japan, and the Labor Commission handles the disputes in Korea. Furthermore, the Commission covers also discrimination cases related to the fixed-term worker, part-timer, and a dispatched worker.

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