일본 근로계약법 제정과 그 시사점 (Research on the Japanese Labor Contract Act)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 37권 / 3호 / 103 ~ 150페이지
· 저자명 : 임서정

초록

The Japanese Labor Contract Act (LCA) was enacted on the 1st January 2008. This LCA enactment was possible because of the notable changes of labor market and labor relations as the economic and social changes in the modern age of Japan. Before the LCA was enacted, the pre-existing law could not handle the diversity of employment status and the individualization of human resources management. The individual labor disputes was increased. Those required the fairer and more transparent legal rule which can be applied to the changing employment environment.
In response to this change, Japanese Government tried to enact the law in June 2003 after the decision in parliament on the urge of establishment of Labor Contract Act. The Ministry of Health, Labor and Welfare set up the research team of LCA in 2004, and the team performed a research for 18 months. It released the report in September 2005 on LCA about the comprehensive and structured findings for the establishment, development, and termination. Going through the discussion with labor union and management. the contents of the law were reduced to include only 19 cases.
It is remarkably meaningful for Japanese labor law history in the sense that pure civil act about the labor contract was established. The new law is quite different from the previous Labor Standards Act, which relied on the penalty or administrative action. The LCA was positioned as one of the fundamental law on the individual labor relations along with the Labor Standards Act.
This research draws several conclusions through the analysis of establishment process and contents of LCA in Japan.
Firstly, it is obvious that Korea also needs to establish the LCA. At the moment, Korea is facing the diverse changes in the labor market and the labor relations similar to Japan. The local market was based on manufacturing industries with regular employment, but it is changing as the increase of contract based hires like dispatched, periodic or hourly employees. This means the employment status or condition are varied. Also, the long term employment and yearly-supplied wage structure are moving to moderate recruitment, experienced hires with yearly salary, and incentives. It is reflection of individual labor contract which is change from the collective and uniformed employment condition. With these labor environments, the labor dispute is increased surrounding the area of individual labor relations. So, it is necessary to establish LCA as a comprehensive and structured rule with the establishment, development, and termination of labor contract to resolve and prevent disputes.
Secondly, Korea will be able to benchmark the experiences of Japan in the area of legislation in the process of lawmaking for labor contract. Korea is generally similar to what Japan does with regards to the structure of labor law, the system of labor-management relations, the labor market and the employment status. So, Korea can reference Japan in the issues of law structure and its detailed contents as we consider the establishment of LCA .
Thirdly, Korea needs to replicate the differences in the establishment of law after understanding fully about the law structure of Japan’s LCA. Korea and Japan has similar lawmaking environment but there are differences in many areas, hence Korea must consider this when lawmaking for Korean Labor Contract.
Fourthly, it is desired to have the LCA structure in Korea based on the realization of ideal and which needs to be separate to Labor Standards Act. The desired scope of LCA needs to contain the judicial rule of the process of the establishment, development, and conclusion. The distinctive LCA about labor contract is adequate to have the civil rule with fairness and transparency which promotes the autonomous decision by equally distributed by labor-management relations.
Fifthly, it is required to have the structured research and the discussion procedure for establishing LCA. For this, the research team needs to be placed as having the labor law scholars, and then the plan for lawmaking should be discussed intensively with the public, labor unions, and management, etc. It is also necessary to have the will of government for enacting of LCA.
Finally, the LCA should not be biased to provide benefit to any of labor or management, but be promoted only for the purpose of resolving the issues aroused in the relations of labor-management with the fair and transparent rule.

영어초록

The Japanese Labor Contract Act (LCA) was enacted on the 1st January 2008. This LCA enactment was possible because of the notable changes of labor market and labor relations as the economic and social changes in the modern age of Japan. Before the LCA was enacted, the pre-existing law could not handle the diversity of employment status and the individualization of human resources management. The individual labor disputes was increased. Those required the fairer and more transparent legal rule which can be applied to the changing employment environment.
In response to this change, Japanese Government tried to enact the law in June 2003 after the decision in parliament on the urge of establishment of Labor Contract Act. The Ministry of Health, Labor and Welfare set up the research team of LCA in 2004, and the team performed a research for 18 months. It released the report in September 2005 on LCA about the comprehensive and structured findings for the establishment, development, and termination. Going through the discussion with labor union and management. the contents of the law were reduced to include only 19 cases.
It is remarkably meaningful for Japanese labor law history in the sense that pure civil act about the labor contract was established. The new law is quite different from the previous Labor Standards Act, which relied on the penalty or administrative action. The LCA was positioned as one of the fundamental law on the individual labor relations along with the Labor Standards Act.
This research draws several conclusions through the analysis of establishment process and contents of LCA in Japan.
Firstly, it is obvious that Korea also needs to establish the LCA. At the moment, Korea is facing the diverse changes in the labor market and the labor relations similar to Japan. The local market was based on manufacturing industries with regular employment, but it is changing as the increase of contract based hires like dispatched, periodic or hourly employees. This means the employment status or condition are varied. Also, the long term employment and yearly-supplied wage structure are moving to moderate recruitment, experienced hires with yearly salary, and incentives. It is reflection of individual labor contract which is change from the collective and uniformed employment condition. With these labor environments, the labor dispute is increased surrounding the area of individual labor relations. So, it is necessary to establish LCA as a comprehensive and structured rule with the establishment, development, and termination of labor contract to resolve and prevent disputes.
Secondly, Korea will be able to benchmark the experiences of Japan in the area of legislation in the process of lawmaking for labor contract. Korea is generally similar to what Japan does with regards to the structure of labor law, the system of labor-management relations, the labor market and the employment status. So, Korea can reference Japan in the issues of law structure and its detailed contents as we consider the establishment of LCA .
Thirdly, Korea needs to replicate the differences in the establishment of law after understanding fully about the law structure of Japan’s LCA. Korea and Japan has similar lawmaking environment but there are differences in many areas, hence Korea must consider this when lawmaking for Korean Labor Contract.
Fourthly, it is desired to have the LCA structure in Korea based on the realization of ideal and which needs to be separate to Labor Standards Act. The desired scope of LCA needs to contain the judicial rule of the process of the establishment, development, and conclusion. The distinctive LCA about labor contract is adequate to have the civil rule with fairness and transparency which promotes the autonomous decision by equally distributed by labor-management relations.
Fifthly, it is required to have the structured research and the discussion procedure for establishing LCA. For this, the research team needs to be placed as having the labor law scholars, and then the plan for lawmaking should be discussed intensively with the public, labor unions, and management, etc. It is also necessary to have the will of government for enacting of LCA.
Finally, the LCA should not be biased to provide benefit to any of labor or management, but be promoted only for the purpose of resolving the issues aroused in the relations of labor-management with the fair and transparent rule.

참고자료

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