근로계약법의 이론적 정초 (The Legal-Theoretical Foundation of Korean Labor Contract Law)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 48호 / 169 ~ 208페이지
· 저자명 : 강희원

초록

As well as we know, there is no written code called ‘labor contract act’ in the Republic of Korea, but there have been substantial normative meaning of labor contractual rules in Korea that regulate the creation, change, termination of legal rights and duties of employers and employees in individual employment relations. Korean labor market has undergone many transformations as enterprise globalization, diversification of forms of employment, individualization of worker’s consciousness etc., so the properly-designed codification of labor contract lawshould be asked to settle and adjust a bunch of new legal problems and conflicts appropriately in individual employment relations.
In this article, some basic questions about Korean Labor Law System are treated with a systematic approach in oder to rebuild an ideal and fundamental infrastructure of korean labor contract law extensively. As the starting point for this legal-dogmatical study, I’m taking paragraph 32 of the Constitution of Korea and some general provisions(article1 to article 6) of the Labor Standard Act which should be regarded as the principles of Korean labor contract law. The Constitution is the supreme law by which all of the korean laws are legitimized. The Labor Standard Act is the Framework Act on individual employment relations which are based on labor contracts agreed between employees and employers, although this Act was originally established as a labor protection law. If any legislation of labor contract law would be enacted in the future, it is the natural corollary that legislation should be subject to the Korean Constitutional Law and the Labor Standard Act inevitably.
Following provisions would work as order-ideas which signpost right regulative and legislative directions for the labor contract law; paragraph 32 of the Constitutional Law states the guarantee of laborer’s dignity as a human being in working conditions, and article 1 of Labor Standard Act sets its legislative purpose as securing labor’s Basic Livelihood, article 3 of this Act prohibits lowering working conditions below the legal minimum, and article 6 of this imposes employer to provide equal treatment for all employees of his workplace unit. Especially, the principle of equal decision to working conditions between employee and employer and the doctrine of good faith and sincerity in the Labor Standard Act itself article 4 and article 5 should be recognized as the fundamental principles for the coming labor contract law.

영어초록

As well as we know, there is no written code called ‘labor contract act’ in the Republic of Korea, but there have been substantial normative meaning of labor contractual rules in Korea that regulate the creation, change, termination of legal rights and duties of employers and employees in individual employment relations. Korean labor market has undergone many transformations as enterprise globalization, diversification of forms of employment, individualization of worker’s consciousness etc., so the properly-designed codification of labor contract lawshould be asked to settle and adjust a bunch of new legal problems and conflicts appropriately in individual employment relations.
In this article, some basic questions about Korean Labor Law System are treated with a systematic approach in oder to rebuild an ideal and fundamental infrastructure of korean labor contract law extensively. As the starting point for this legal-dogmatical study, I’m taking paragraph 32 of the Constitution of Korea and some general provisions(article1 to article 6) of the Labor Standard Act which should be regarded as the principles of Korean labor contract law. The Constitution is the supreme law by which all of the korean laws are legitimized. The Labor Standard Act is the Framework Act on individual employment relations which are based on labor contracts agreed between employees and employers, although this Act was originally established as a labor protection law. If any legislation of labor contract law would be enacted in the future, it is the natural corollary that legislation should be subject to the Korean Constitutional Law and the Labor Standard Act inevitably.
Following provisions would work as order-ideas which signpost right regulative and legislative directions for the labor contract law; paragraph 32 of the Constitutional Law states the guarantee of laborer’s dignity as a human being in working conditions, and article 1 of Labor Standard Act sets its legislative purpose as securing labor’s Basic Livelihood, article 3 of this Act prohibits lowering working conditions below the legal minimum, and article 6 of this imposes employer to provide equal treatment for all employees of his workplace unit. Especially, the principle of equal decision to working conditions between employee and employer and the doctrine of good faith and sincerity in the Labor Standard Act itself article 4 and article 5 should be recognized as the fundamental principles for the coming labor contract law.

참고자료

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